Citation Nr: 1300804 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-41 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating for service-connected posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. Service in the Republic of Vietnam is indicated by the record. The Veteran is the recipient of the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2012, the Veteran presented sworn testimony during a personal hearing in St. Petersburg, Florida, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. As will be detailed below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After having considered the matter, and for reasons expressed immediately below, the Board finds that the claims on appeal - entitlement to an increased rating for service-connected PTSD and entitlement to service connection for bilateral hearing loss - must be remanded for further development. As to the increased rating claim, the Veteran contends that his service-connected PTSD is more disabling than the current 30 percent evaluation reflects. He was most recently afforded a VA examination in June 2009. He has subsequently contended that his psychiatric symptoms have worsened. See the May 2012 Board hearing transcript. To this end, the Veteran's spouse also testified at the May 2012 Board hearing concerning the Veteran's worsening psychological symptomatology. Additionally, the Veteran recently submitted third party lay statements in support of his contentions that his mental health has worsened in recent years. See, e.g., the statements of Mr. E.R. and Mr. C.M. received June 2012. Accordingly, the evidence of record is unclear concerning the current nature and extent of the Veteran's service-connected PTSD. Thus, to ensure that the record reflects the current nature and extent of this disorder, a contemporaneous psychiatric examination, with findings responsive to the applicable rating criteria, is needed. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); & Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The examination conducted pursuant to this Remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the current severity of the symptoms associated with the service-connected PTSD and to the extent of functional occupational impairment associated with this service-connected disability. With respect to the bilateral hearing loss claim, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For VA compensation purposes, 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. 38 C.F.R. § 3.385 & Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As to a current disability, the Veteran has asserted that he suffers from bilateral hearing loss. See the May 2012 Board hearing transcript. A VA audiology examination dated in February 2007 revealed moderately severe to severe sensorineural hearing loss in the left ear, sufficient for VA compensation purposes in the left ear. See 38 C.F.R. § 3.385. However, puretone threshold and speech recognition scores of the right ear did not demonstrates sufficient hearing loss to qualify for a disability for VA compensation purposes under 38 C.F.R. § 3.385. Critically, the Veteran and his spouse recently testified that the Veteran's bilateral hearing loss has worsened in recent years. See the May 2012 Board hearing transcript, pg. 19. Accordingly, there remains a question of diagnosis with respect to the right ear. With regard to in-service injury or disease, the Veteran's service personnel records and DD-214 indicate that he served in the Republic of Vietnam from December 1965 to December 1966 under the MOS of ammunition bearer. As indicated above, the Veteran is the recipient of the Combat Infantry Badge. Accordingly, acoustic trauma as a result of combat is conceded. With respect to medical nexus, the Veteran submitted a positive medical nexus opinion from Dr. J.R. in support of his claim. Specifically, in a June 2012 statement, Dr. J.R. indicated that the Veteran's hearing loss is "most likely caused by or a result of noise exposure from [mortar] shells." Significantly, Dr. J.R. did not provide any explanation to support his conclusion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). Similarly, in a May 2007 VA medical opinion, an examiner indicated that the "Veteran's hearing loss is not caused by or a result of military noise exposure. Hearing on separation physical in 1967 was found to be normal in both ears." Notably, the May 2007 VA examiner provided little rationale to support his conclusion. See Hernandez-Toyens, supra. To this end, the Board notes that the absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Moreover, the May 2007 VA examiner failed to consider the Veteran's competent reports of hearing loss dating from his military service. Here, the Board finds that a new VA examination is necessary to determine whether the Veteran has bilateral hearing loss sufficient for VA compensation purposes and to address the question of whether the Veteran's current hearing loss is related to service. On examination, the examiner should address the Veteran's in-service combat noise exposure and his competent report of continued symptomatology as described above. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Additionally, review of the record reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with his claims file. 38 U.S.C.A. § 5103A(c) (West 2002). Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of any treatment or evaluation that the Veteran may have received at the VA Medical Center (VAMC) in Miami, Florida, the VA outpatient clinic in Sunrise, Florida, or any other facility, since June 2009. All such available documents should be associated with the claims file. 2. Then, schedule the Veteran for a VA psychiatric examination to determine the nature and extent of his service-connected PTSD. The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify the degree of social and occupational impairment attributable to the service-connected PTSD. The results of any such testing and studies should be included in the examination report. The examiner should provide a detailed account of all manifestations of the service-connected PTSD found to be present. In addition, a Global Assessment of Functioning (GAF) score should be assigned, along with an explanation of the number assigned to the Veteran. Also, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. A complete rationale should be given for all opinions and conclusions expressed. 3. Then, schedule the Veteran for a VA audiological examination to determine the nature and etiology of any bilateral hearing impairment. The claims file should be made available to and reviewed by the examiner. All necessary studies, including audiological testing, should be performed. Specifically, the audiologist is requested to identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The examiner should then opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any currently shown hearing impairment had its onset in service or is otherwise related to the Veteran's military service, to include the conceded acoustic trauma/noise exposure. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. Thereafter, readjudicate the issues on appeal - entitlement to an increased rating for service-connected PTSD and entitlement to service connection for bilateral hearing loss. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (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. 2012). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).