Citation Nr: 1122652	
Decision Date: 06/13/11    Archive Date: 06/28/11

DOCKET NO.  09-24 547	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

K. Haddock, Associate Counsel 


INTRODUCTION

The Veteran had active service in the United States Marine Corps (USMC) from July 1967 to March 1970.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

The issue of entitlement to service connection for a psychiatric disability, to include PTSD, is addressed in the REMAND following the order section of this decision.


FINDING OF FACT

Bilateral hearing loss disability and tinnitus developed after the Veteran's active service and are not etiologically related to his active service.  


CONCLUSIONS OF LAW

1.  Bilateral hearing loss disability was not incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2010).  

2.  Tinnitus was not incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2010).  


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The record reflects that prior to the initial adjudication of the claims, the Veteran was mailed a letter in August 2007 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence.  The August 2007 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. 

The Board also finds the Veteran has been afforded adequate assistance in response to his claims.  The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file, private treatment notes are on file, and the Veteran has been afforded appropriate VA examination.  Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims.  The Board is also unaware of any such evidence.

Accordingly, the Board will address the merits of the claims.

Legal Criteria

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

A review of the Veteran's STRs shows that at the time of his enlistment examination in June 1967, the Veteran was afforded an audiological evaluation.  The audiogram results were as follows:

Hertz (Hz)
1000 
2000
3000
4000
Right
40
35
n/a
10
Left
35
40
n/a
25

There is no evidence in the STRs indicating that the Veteran complained of or received treatment for hearing loss or tinnitus while he was in active service.  At the time of his separation from active service, the Veteran was afforded another audiological evaluation.  The results were as follows:

Hertz (Hz)
1000 
2000
3000
4000
Right
5
5
5
5
Left
5
5
5
35
 
There is no indication from the separation examination report that the Veteran complained of symptoms of hearing loss or tinnitus at the time of his separation from active service.

The Board notes that not only was there no significant shift in the Veteran's hearing ability during his active service, the Veteran's hearing actually seemed to improve while he was in active service.    

In June 2009, the Veteran was afforded a VA audiological examination.  At that time, the Veteran reported that he had experienced difficulty hearing speech clearly for approximately the last 10 years, with the right ear being slightly better than the left.  He reported a history of active duty noise exposure in the form of heavy equipment and combat noise while serving in the Republic of Vietnam.  The Veteran also reported a history of occupational noise, in that he had worked in construction for approximately 20 years and that he had worked in restaurants and bars.  The Veteran also reported having tinnitus, which occurred randomly and had its onset approximately 10 years prior the examination.  The examiner diagnosed the Veteran with normal to moderate sensorineural hearing loss in his right ear, normal to severe sensorineural hearing loss in his left ear, and tinnitus.  

The examiner opined that the Veteran's bilateral hearing loss disability and tinnitus were not caused by noise exposure during active service.  In this regard, the examiner reported that at the time of his separation the Veteran's right ear hearing loss was normal and there was only mild hearing loss at 4000 Hz in the Veteran's left ear.  Additionally, the examiner reported that there was no scientific basis for delayed onset of noise-induced hearing loss.  Additionally, the examiner reported that because the Veteran's hearing was essentially normal at separation, there is little basis to conclude that the Veteran's tinnitus was related to active service noise exposure.  The examiner also pointed out the fact that the Veteran reported that his bilateral hearing loss disability and tinnitus had their onset only 10 years prior to the examination, which was approximately 20 years after his separation from active service.  

Also of record is an April 2009 audiogran report from a private Ear, Nose, and Throat physician (ENT).  A review of this report shows that the Veteran does in fact have bilateral hearing loss disability.  However, there is no indication from the report that the current diagnosis of bilateral hearing loss disability is related to noise exposure during the Veteran's active service. 

There is no evidence in the record indicating that the Veteran has received treatment for his bilateral hearing loss disability or tinnitus prior to his April 2009 audiogram from the private ENT.    

The Board notes that the Veteran is competent to report when he first experienced symptoms of hearing loss and tinnitus.  See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  As noted above, he told the June 2009 examiner that he first noticed both disabilities approximately 10 years earlier.  He has not alleged that either disability was present during service.  While the Veteran might sincerely believe that his current bilateral hearing loss disability and tinnitus are related to noise exposure in service, his lay opinion concerning this matter requiring medical expertise is of no probative value.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  As discussed above, the medical opinions addressing the etiology of the disabilities at issue are against the claim.

Accordingly, the preponderance of the evidence is against the claims and entitlement to service connection for bilateral hearing loss disability and tinnitus is not warranted. 
 

ORDER

Entitlement to service connection for bilateral hearing loss disability is denied.

Entitlement to service connection for tinnitus is denied.


REMAND

The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for a psychiatric disability, to include PTSD, is decided.

At the outset, the Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability.  The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms.  Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits."  Id. at 9.  The Court held that, in construing a claim, the Board must consider any disability, "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim."  Id. at 5. 

A review of the Veteran's STRs shows that he was treated for depression, immature personality disorder, and situational adjustment disorder while in active service.  The Veteran has reported that he currently experiences symptoms of PTSD and depression and has since his active service.    

In light of the Court's decision and evidence of record showing that the Veteran was treated for mental health disabilities other than PTSD while in active service, the Board will construe the Veteran's claim as one for entitlement to service connection for a mental disability, to include PTSD.

As noted above, a review of the Veteran's STRs shows that the Veteran received psychiatric treatment on several occasions while in active service.  A review of those psychiatric treatment notes shows that the various treatment providers tended to believe that the Veteran was having problems during active service as a result of family dysfunction and other issues that existed prior to his enlistment in the USMC.  

The Board notes that a Veteran is presumed to have been sound upon entry into the service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002).

Additionally, the Veteran has reported that he participated in combat during his service in the Republic of Vietnam and as a result has experienced recurring thoughts and recollections of the event that have caused psychiatric distress since that time.

A review of the Veteran's DD Form 214 shows that the Veteran's military occupational specialty (MOS) was equipment operator.  There is no indication from the Veteran's DD Form 214 that the Veteran was awarded any sort of combat commendations for his service in the Republic of Vietnam.  However, a review of the Veteran's SPRs shows that the Veteran participated in the defense of Quang Tri Combat Base while he was serving in the Republic of Vietnam.  

The Veteran has reported that his participation of the defense of Quang Tri Combat Base was a very stressful event for him and has caused him to experience psychiatric problems since that time.

At this time, the Board concedes the Veteran's exposure to combat stressors while he was serving in the Republic of Vietnam.

Therefore, the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present psychiatric disability, to include whether it clearly and unmistakably existed prior to active service and underwent no permanent increase in severity as a result of active service.   

Accordingly, this case is remanded to the RO or Appeals Management Center (AMC) in Washington, DC for the following actions:

1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records.

2. Then, the Veteran should be afforded a VA examination by a psychiatrist or psychologist to determine the nature and etiology of any currently present psychiatric disability.  The claims file must be made available to and reviewed by the examiner.  Any indicated studies should be performed.  

Based upon the examination results and the review of the claims file, the examiner should provide an opinion with respect to each acquired psychiatric disorder present during the period of this claim as to whether there is a 50 percent or better probability that the disorder was present during service.  If so, the examiner should provide an opinion as to whether the disorder clearly and unmistakably existed prior to the Veteran's active service and if so, whether it clearly and unmistakably underwent no permanent increase in severity as a result of the Veteran's active service.

With respect to each psychiatric disorder the examiner believes the Veteran developed after his discharge from service, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service, to specifically include the stressor conceded by the Board. 

The supporting rationale for all opinions expressed must be provided.

3. The RO or the AMC should undertake any other development it determines to be warranted.

4. Then, the RO or the AMC should readjudicate the Veteran's claim of entitlement to service connection for a psychiatric disability, to include PTSD, based on a de novo review of the record.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond.  Thereafter, if indicated, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.  
      
The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs