Citation Nr: 1300239 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-02 017 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a claimed bilateral hearing loss. 2. Entitlement to service connection for a claimed tinnitus. 3. Entitlement to service connection for a claimed innocently acquired psychiatric disorder, to include adjustment disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to May 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the RO. The Veteran failed to report for a hearing scheduled at the RO with Board in June 2011. He has not asserted good cause for his failure to report and has not requested to reschedule the hearing. The hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). In December 2011, the Board remanded this case for additional development. The remand directives were substantially complied with and the case has been returned to the Board. The Virtual VA eFolder has been reviewed. FINDINGS OF FACT 1. The Veteran's reports of having in-service exposure to elevated noise levels are consistent with his duties during active service and his lay assertions are credible for the purpose of establishing a continuity of symptomatology referable to having tinnitus since service. 2. The currently demonstrated bilateral hearing loss is shown as likely as not to be due to in-service exposure to hazardous noise levels. 3. The currently demonstrated tinnitus is shown as likely as not to be due to in-service exposure to hazardous noise levels. 4. The Veteran is shown to have exhibited manifestations of a personality disorder during service; an acquired psychiatric disorder was not clinically identified until many years after service. 5. The currently demonstrated acquired psychiatric disease including an adjustment disorder is not shown to be due to an event or incident of the Veteran's period of active service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by bilateral hearing loss is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 3. The Veteran's acquired psychiatric disability to include an adjustment disorder is not due to disease or injury that was incurred in or aggravated by active service; a personality disorder is not a disease or injury within the meaning of applicable legislation; nor may a psychosis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2012) ; 38 C.F.R. § 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2008, prior to the rating decision in question, of the information and evidence needed to substantiate and complete a service connection claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. This letter also provided notice how VA assigns disability ratings and effective dates. The case was most recently readjudicated in the October 2012 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, and Social Security Administration (SSA) records. The Veteran submitted private medical evidence in support of his claim and has not specifically identified additional relevant records that need to be obtained. The Veteran was provided VA audiometric examinations in November 2008 and January 2012, and a VA psychiatric examination in December 2008. No further examinations or opinions are needed at this time. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159. Analysis In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss and psychosis, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). In order to establish entitlement to service connection or service-connected aggravation for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. Bilateral hearing loss In April 2008, the Veteran claimed service connection for bilateral hearing loss. He reported being exposed to loud noise on the flight deck and in the hangar of an aircraft carrier where his hearing loss first started. In March 2009, the RO denied service connection for a bilateral hearing loss. The Veteran disagreed with the decision and subsequently perfected this appeal. A review of service records does not show any complaints related to hearing loss. On entrance examination in November 1966 and separation examination in May 1967, the Veteran's hearing was reported as 15/15, bilaterally, on whispered voice testing. An April 2008 statement from a private audiologist notes that the Veteran was seen for audiological evaluation and reported being exposed to significant noise levels on the flight deck and having no history of noise exposure following his discharge from the Navy. His chief complaints were hearing difficulty and occasional tinnitus. Audiological findings were reported as follows: (1) normal otoscopic exam; (2) mild-moderate sensorineural hearing loss in both ears; (3) word recognition ability was normal bilaterally (92 percent right; 88 percent left); and (4) tympanometry showed normal type "A" tympanograms, bilaterally. The examiner stated that the Veteran presented with a mild-moderate sensorineural hearing loss in both ears and that it was "more than likely that his hearing loss was acquired while he served in the Navy, particularly since there are significantly high noise levels on the flight deck." The Veteran was seen for a VA audiology examination in November 2008. Test results were noted not to be reliable and in poor agreement between pure tone averages and speech reception thresholds, bilaterally. The VA audiologist indicated "[n]o statement regarding this veteran's current hearing sensitivity or opinion [could] be made at this time for rating purposes without valid and reliable responses." In April 2009, the Veteran's spouse stated that he wrote her letters claiming his hearing was getting worse from the landings of the plane on the flight deck. The Veteran underwent additional VA examination in January 2012. Puretone thresholds at 500, 1000, 2000, 3000 and 4000 Hertz were reported as: 45, 45, 45, 45 and 50 (right ear)and 45, 45, 45, 50, and 50 (left ear), respectively. The frequencies at 6000 Hertz and 8000 Hertz could not be tested due to unreliable behavioral responses to pure tones. The test results were not valid for rating purposes (not indicative of organic hearing loss). The examiner stated that there was poor SRT/PTA agreement. Discrimination presented at "0dBHL re: PTA" was excellent which would not occur if thresholds were accurate. He was re-instructed for pure tones with no change in 45-50dB behavioral responses. Normal tympanograms and reflexes were noted. Speech discrimination scores with the Maryland CNC word list were 100 percent in the right ear and 96 percent in the left ear. A diagnosis of hearing loss was not specifically noted for either ear; however, in response to the question "[i]f present, [was] the Veteran's hearing loss at least as likely as not (50% probability or greater) caused by or a result of an event in military service," the examiner stated "no." The rationale for this statement was the results were not adequate for rating purposes. Further, the Veteran was discharged after seven months of service as a barber and, while he worked on an aircraft carrier for two months, he did not work around noise. Initially, the Board will consider whether there is evidence of any in-service acoustic trauma. The claims folder appears to contain some inconsistent information regarding whether the Veteran worked as a barber or worked on the flight deck. The Board observes that the Veteran was apparently a barber both before and after military service. His DD Form 214, however, shows his rate was that of a seaman apprentice and his related civilian occupation was that of deck hand (water transportation). The abstract of service shows the Veteran served aboard the USS CONSTELLATION (CVA-64) from February 1967 to approximately May 1967. Thus, his reports of in-service noise exposure appear to be consistent with duties aboard the flight deck of an aircraft carrier. Notwithstanding evidence of in-service noise exposure, service connection requires that there be a current disability related to such exposure. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. As noted, a hearing loss disability was not shown during active service. Regardless, a veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155 (1993). Both the November 2008 and January 2012 VA examinations indicate that the audiometric test results were unreliable and inadequate for rating purposes. Despite this, the January 2012 examiner still provided a medical opinion to support his claim. A private audiologist diagnosed mild-moderate sensorineural hearing loss in both ears, but did not provide the pure tone threshold results or include the actual audiogram. Speech discrimination scores were both below 94 percent on private testing, but it is unclear whether word recognition testing was pursuant to the Maryland CNC. The private audiologist recommended consideration of binaural amplification. Significantly, the recent VA examination yielded results that would serve to establish the presence of a bilateral hearing loss disability for compensation purposes. Under these circumstances, the Board finds the evidence to be in relative equipoise in showing that the Veteran suffers from a bilateral hearing loss disability for VA purposes. See 38 C.F.R. §§ 3.102, 3.385. Having found a current disability, the Board must consider whether such is related to the in-service noise exposure. As discussed, the claims folder contains both a positive and a negative medical opinion. Under the benefit-of-the-doubt rule, however, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given the evidence in the record, such a conclusion cannot be made in this case. Thus, in resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss disability is warranted. 38 C.F.R. § 3.102. Tinnitus In April 2008, the Veteran claimed service connection for tinnitus. He reported that he worked on the flight deck and in the hangar of an aircraft carrier and that was where his tinnitus started. In March 2009, the RO denied service connection for tinnitus. The Veteran disagreed with the decision and subsequently perfected this appeal. As discussed, the Board concedes in-service noise exposure. Review of service records does not show any complaints related to tinnitus. On private audiometric evaluation in April 2008, the Veteran reported having occasional tinnitus. At the January 2012 VA examination, the Veteran reported recurrent tinnitus. He identified no specific date or circumstance but described it as infrequent bursts of ringing that last 30 seconds or so. The VA examiner stated that he could not provide a medical opinion regarding the etiology of the Veteran's tinnitus without resort to speculation. He indicated that speculation was required because the testing was not adequate for rating purposes. At the time of his April 2008 claim, the Veteran generally asserted that his tinnitus began during military service. The Veteran is competent to report that he currently has tinnitus and that he has experienced it since military service. See Charles v. Principi, 16 Vet. App. 370 (2002) (appellant competent to testify regarding symptoms capable of lay observation). However, his lay testimony concerning this also must be credible in order to ultimately have probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (recognizing lay evidence as potentially competent to support presence of disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records, but also indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). On review, the claims folder contains evidence arguably both for and against the Veteran's claim. That is, the VA examiner indicated that due to the inadequacy of the audiometry testing, he could not provide an opinion without speculation. The Veteran, however, is found to have asserted having the in-service onset of tinnitus following noise exposure as well as a continuity of symptomatology after service. Despite the absence of complaints during service, the Board finds the Veteran's assertions credible. As the evidence is in equipoise, all reasonable doubt must be resolved in the Veteran's favor. Hence, service connection is warranted. 38 C.F.R. § 3.102. Acquired psychiatric disorder In April 2008, the Veteran claimed service connection for a psychological condition (depression). In March 2009, the RO denied service connection for an adjustment problems with mixed emotional features. The Veteran disagreed with the decision and subsequently perfected this appeal. The issue has been recharacterized as stated above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). On enlistment examination for the Navy Reserve in October 1965, the Veteran's psychiatric system was reported as normal on clinical evaluation. At that time, he denied having any psychiatric symptoms. On examination for active duty in November 1966, the Veteran's mental status was not addressed. On the associated report of medical history, he did report having depression or excessive worry and nervous trouble. The examiner noted many functional complaints, not considered disabling. In December 1966, a psychiatric consult was requested. The examiner noted that the Veteran had dependency problems for years manifesting in a variety of ways and, since coming on to active duty, had grown depressed and tearful with insomnia, feelings of worthlessness and a lack of purpose. Following examination, the diagnosis of passive-dependent personality was recorded. In January 1967, the Veteran underwent further psychiatric evaluation when he reported continuing to be anxious and depressed. Diagnosis remained passive-dependent personality. An April 1967 record noted a diagnosis of schizoid reaction and indicated that the Veteran was being referred for further psychiatric evaluation. A record dated on April 27, 1967 showed that the Veteran was seen in psychiatric consultation at the U.S. Naval Hospital after he was referred by his ship's medical officer. It was noted that the Veteran could not stand the Navy and wanted out badly. According to the Veteran, he had a long history of inadequate, immature, impulsive behavior that was worse in the structured military environment. He had two previous consults, both noting a diagnosis of character disorder. He had shown no signs of improved adjustment or increased motivation. It was noted that the Veteran had many complaints about adjustment in the Navy and was dissatisfied with his duties. He had no motivation for continued active duty. Diagnosis was that of emotional instability. The examiner noted that there was no need for psychiatric hospitalization or treatment. Discharge was recommended and approved. A May 2005 statement from Dr. L.G. showed that the Veteran was diagnosed with various disabilities, including anxiety, insomnia and claustrophobia. A review of submitted SSA records shows that, in a June 2005 application, the Veteran reported that a family tragedy had brought on a lot of stress and depression. The Veteran underwent a VA psychiatric examination in December 2008. His claims folder was reviewed. He reported that his father pressured him to join the service and that, being so far from home, he had problems with adjustment. He also discussed the stressor of friends being killed in Vietnam and of getting his girlfriend pregnant. He was seen several times for mental health during service. He was currently seeing Dr. F. monthly, for the last 5-6 months, and this was mostly for dealing with the loss of his son. He reported that, following his bypass surgery, he became depressed. The Veteran stated that he thought often of his son who died 11 years earlier. He also reported claustrophobic feelings that he had been present since he was a youngster. He was currently receiving SSA benefits based on his heart and back problems and sometimes getting depressed over his physical and financial problems. Following examination, diagnosis was that of adjustment problems with mixed emotional features, related to health problems and financial problems and death of his son years ago. The examiner further stated that the Veteran's adjustment problems were not deemed to be related to the military. In an April 2009 statement, the Veteran's spouse noted that they had corresponded while he was in service when he acknowledged that he was going through a very bad time. He wrote of his depression and losing friends in Vietnam. He became worse after he got home and became violent with mental and physical abuse. For 40 years, she asked him to seek counseling but he refused. He had since gone to a psychiatrist. A review of the VA medical records notes diagnoses of depressive disorder not otherwise specified and anxiety disorder. A May 2011 mental health note indicates that the Veteran was inquiring about another appeal for compensation. The psychologist noted that the Veteran did not have new information to add that would likely change the prior decisions and that his history had been previously documented. An August 2011 note indicated that the Veteran verbalized increased stress to include his son's death, a recent car accident and health issues. On review, a psychiatric disorder was not noted when the Veteran entered on active duty in November 1966. Significantly, the service treatment records do not include a diagnosis of an acquired psychiatric disorder. While the Veteran was seen on several occasions for complaints of depression, anxiety and insomnia, each examination noted a diagnosis of a personality disorder. An isolated diagnosis of schizoid reaction in April 1967 was subsequently changed to emotional instability. Personality disorders are not diseases or injuries within the meaning of applicable legislation. See 38 C.F.R. § 3.303(c). The evidence also does not show the presence of a psychosis to a compensable degree within the first year following discharge from active service. See 38 C.F.R. §§ 3.307, 3.309, 3.384. In fact, an acquired psychiatric disorder was not noted until many years after service. The evidence of record shows current Axis I psychiatric diagnoses. The question, however, is whether any is related to an event or incident of his active service. As noted, the VA examiner determined that the Veteran's adjustment disorder was related to his current health and financial problems as well as the death of his son, and not due to his active service. The examiner's opinion was based on a review of the claims folder as well as examination of the Veteran and it is considered highly probative. A review of VA records also does not suggest that any current acquired psychiatric disorder had its clinical onset during service. The statements from the Veteran and his spouse support his claim. That is, they tend to suggest that his psychiatric complaints began during service and have continued to date. The Veteran is competent to report his symptoms and the Veteran's spouse is competent to report her observations of the Veteran's behavior. Charles. As lay persons, however, they are not competent to provide a medical etiology opinion and their contentions are not sufficient to establish causation, particularly considering the probative VA opinion discussed above. See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012). Here, on this record, the Board must rely on the medical evidence that establishes that the Veteran exhibited behavior related to his personality disorder during service and first manifested findings of acquired psychiatric disease many years after service that were due to events that were not related to his period of active duty. On review, as the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. ORDER Service connection for a bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for an innocently acquired psychiatric disorder, to include adjustment disorder, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs