Citation Nr: 1033080 Decision Date: 09/02/10 Archive Date: 09/13/10 DOCKET NO. 09-02 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a psychiatric disorder (claimed as a "nervous condition"). 2. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from August 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that in the initial rating decision issued in January 2008, the RO granted service connection for hearing loss in the left ear, evaluated as noncompensable effective July 17, 2007 (the date the claim for service connection was received), but denied service connection for hearing loss in the right ear. The Veteran appealed both the denial of service connection for hearing loss in the right ear and the assignment of a noncompensable disability rating for the now service-connected hearing loss in the left ear. By rating decision issued in August 2009, the RO granted service connection for hearing loss in the right ear effective July 17, 2007, and evaluated the Veteran's now service-connected bilateral hearing loss as noncompensable. The Board finds that the issue now before it is one for an initial compensable disability rating for bilateral hearing loss, and is for the entire appeal period as service connection for hearing loss in both ears is effective as of July 17, 2007. The Veteran appeared and testified at a videoconference hearing held before the undersigned Veterans Law Judge in July 2010. At this hearing, the Veteran only submitted testimony as to the issue of a higher disability rating for his service-connected hearing loss. He specifically indicated he did not desire to submit evidence relating to his claim for service connection for a psychiatric disorder (claimed as a "nervous condition"). A copy of the transcript of this hearing has been associated with the claims file. In addition, the Board notes that the Veteran submitted additional evidence in relation to his claim for an initial compensable disability rating for bilateral hearing loss along with a waiver of consideration by the Agency of Original Jurisdiction (AOJ). The additional evidence and waiver of AOJ consideration have been associated with the claims file. The issue of entitlement to an initial compensable disability rating for bilateral hearing loss 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. FINDING OF FACT There is no evidence, medical or lay, that establishes that the Veteran has a current psychiatric disorder (claimed as a "nervous condition") as a result of his military service. CONCLUSION OF LAW A psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Requirements 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, notice was provided to the Veteran in July 2007, prior to the initial AOJ decision on his claim. The Board finds that the notice provided fully complies with VA's duty to notify. Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He was told it was his responsibility to support the claim with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). The Veteran has not identified any evidence related to this claim for VA to obtain. VA, therefore, had no duty to assist the Veteran in developing documentary evidence with regard to this claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. VA did not obtain a medical examination in relation to this claim because there is no competent evidence that the Veteran is diagnosed with any psychiatric disorder that is the result of any event, injury or disease in service. Thus, VA was not obligated to obtain a medical examination. 38 C.F.R. § 3.159(c)(4)(i)(C). Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre- existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In his original claim filed in July 2007, the Veteran claimed service connection for a "nervous condition" but did not identify any treatment, either in or after service. The only statement of record relating to the Veteran's claim for service connection for a psychiatric disorder is seen in his Notice of Disagreement in which he stated that: "While in Viet Nam (sic) I had to go on serval (sic) patrols which made me nervous and jumpy." The Veteran's service treatment records are silent for any complaints of or treatment for any psychiatric disorder, including a "nervous condition." Notably, at his separation examination in July 1967, the Veteran denied having frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, or nervous trouble of any sort. Thus, the Board finds there is no evidence that the Veteran had a chronic psychiatric disorder (claimed as a "nervous condition") in service. Furthermore, the Veteran has not identified or provided any post- service medical evidence to show that he is diagnosed to have a current psychiatric disorder that may be related to his military service. The Veteran has also failed to provide a statement of his current symptoms upon which a medical diagnosis may be rendered. In addition, although having the opportunity to discuss his claimed "nervous condition" at the hearing in July 2010, the Veteran declined to do so. Thus, there is a paucity of evidence to establish that the Veteran has a current psychiatric disorder that may be related to his military service. Congress has specifically limited entitlement to service- connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the preponderance of the evidence is against finding that the Veteran has a current psychiatric disorder that is related to his military service. It is understandable that the Veteran may have been "nervous and jumpy" while on patrol when serving in the Republic of Vietnam; however, there is simply no evidence to establish he has a current disability for which service connection may be granted. Consequently, the Veteran's claim for service connection for a psychiatric disorder (claimed as a "nervous condition") must be denied. ORDER Entitlement to service connection for a psychiatric disorder (claimed as a "nervous condition") is denied. REMAND The Board finds that remand of the Veteran's claim for an initial compensable disability rating for service-connected bilateral hearing loss must be remanded for additional development. Although the Veteran has undergone two VA examinations (in November 2007 and January 2009), at his hearing in July 2010, the Veteran submitted the report of a private physician dated in June 2010 that included the results of audiometric testing. Unfortunately the Board finds that this report is not adequate for rating purposes as it fails to identify that the Maryland CNC word list was used to test the Veteran's speech discrimination. See 38 C.F.R. § 4.85(a) (requires that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test). However, the Board notes that the puretone audiometry test appears to show a threshold shift in all frequencies when compared to the previous VA examinations. Thus, the Board interprets this evidence as an indication that the Veteran's hearing disability has worsened and a VA examination is in order to determine the current severity of it. In addition, at the July 2010 hearing, the Veteran testified that he was seen within the last year for treatment for his hearing loss at the VA Medical Center in Tulsa, Oklahoma. These treatment records may be highly probative to the Veteran's claim. In addition, VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Upon remand, the RO should obtain the Veteran's VA treatment records relating to treatment for his hearing loss at the VA Medical Center in Tulsa, Oklahoma, since July 2007. Finally, the Board notes that the Veteran has submitted multiple lay statements in addition to his own statements and testimony regarding the effect his bilateral hearing loss has on his employment. It does not appear the RO has adjudicated in the first instance whether referral for an extraschedular consideration under 38 C.F.R. § 3.321(b) is warranted. On remand, this should be adjudicated along with readjudication of whether a compensable disability rating is warranted under the schedular criteria for hearing loss. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records from the VA Medical Center in Tulsa, Oklahoma, for treatment relating to his bilateral hearing loss from July 2007 to the present. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. 2. After all additional available evidence has been obtained, schedule the Veteran for VA audio examination. The claims file must be provided to and reviewed by the examiner, who must indicate in his/her report that said review has been accomplished. The examination should be conducted by a VA audiologist for the purpose of ascertaining the current severity of the Veteran's service- connected bilateral hearing loss. The examiner should perform a complete audiological evaluation. The examiner should elicit information as to the effect the Veteran's hearing loss has on his activities of daily living, including work and social activities. If speech discrimination testing is inappropriate, the examiner should indicate the reason for which such was not performed. 3. Thereafter, the Veteran's claim should be readjudicated, including adjudication of whether the Veteran's claim should be referred for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b). If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2009). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs