Citation Nr: 1303606	
Decision Date: 02/01/13    Archive Date: 02/08/13

DOCKET NO.  07-17 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to an increased initial rating for service-connected posttraumatic stress disorder (PTSD), currently evaluated as 10 percent disabling.

2.  Entitlement to an effective date prior to October 20, 2004 for the award of service connection for PTSD.

3.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss.

4.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States

WITNESSES AT HEARINGS ON APPEAL

The Veteran and L.S.


ATTORNEY FOR THE BOARD

B. Ogilvie, Counsel


INTRODUCTION

The Veteran served on active duty from November 1969 to July 1971 and from March 1974 to April 1977. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2005 and November 2009 rating decisions of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO).

A hearing was conducted before a Veterans Law Judge (VLJ) in September 2009.  A transcript of the hearing is of record.  The VLJ was subsequently designated to serve as the Acting Chairman of the Board and is no longer available to consider the Veteran's appeal.  The Veteran requested a new hearing, and the claims were remanded in July 2012 to afford the Veteran another hearing.  A subsequent hearing was held before the undersigned in September 2012; a transcript of this hearing is also of record.

The claim of entitlement to service connection for bilateral hearing loss is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran if further action on his part is required.




FINDINGS OF FACT

1.  The Veteran's PTSD is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, as shown by memory problems, intrusive thoughts and memories, sleep disturbances, and symptoms of numbing and avoidance.

2.  In an unappealed August 2002 rating decision, the RO last denied a claim of entitlement to service connection for PTSD.

3.  The Veteran's informal claim to reopen a claim of entitlement to service connection for PTSD was received by VA on October 20, 2004.

4.  In September 2005, the RO granted service connection for PTSD and awarded a compensable rating of 10 percent, effective from October 20, 2004, the date of receipt of the Veteran's claim for such disability.

5.  The Veteran's claim of entitlement to service connection for bilateral hearing loss was denied by an unappealed January 1988 rating decision. 

6.  The evidence received since the January 1988 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss.


CONCLUSIONS OF LAW

1.  The criteria for an initial 30 percent disability rating for PTSD have been met.       38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2012).

2.  The criteria for entitlement to an effective date prior to October 20, 2004 for service connection for PTSD have not been met.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.400 (2012).

3.  The January 1988 rating decision denying service connection for hearing loss is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012).

4.  New and material evidence having been submitted, the claim for entitlement to service connection for bilateral hearing loss is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (2012).  The VCAA notice requirements apply to all five elements of a claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

With regard to the Veteran's petition to reopen a claim of entitlement to service connection for bilateral hearing loss, the Board is herein reopening this claim, representing a grant of this aspect of the appeal.  Thus, any deficiency in VA's VCAA compliance with regard to this issue is deemed to be harmless error, and no further discussion of VA's responsibilities under the VCAA is necessary, with respect to this issue.

VA has satisfied its VCAA duty to notify obligations with respect to the Veteran's claim for an increased initial rating for PTSD and for an earlier effective date for the grant of service connection for PTSD.  The United States Court of Appeals for Veterans Claims (Court) has held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, because the instant appeal stems from the Veteran's disagreement with the initial disability rating and effective date assigned for PTSD following the grant of service connection, VA's duty to notify has been satisfied with respect to these issues.  Id.; see 38 C.F.R. § 3.159(b)(3) (2012).

All relevant evidence necessary for an equitable resolution of the Veteran's increased initial rating and earlier effective date claims have also been identified and obtained.  The evidence of record includes VA outpatient treatment records, reports of multiple VA psychiatric examinations, statements from the Veteran, the transcript of a September 2009 hearing before a VLJ, and the transcript of a September 2012 hearing before the undersigned.  The Veteran and his representative have not identified any other outstanding relevant evidence.

The Veteran was afforded VA examinations to assess the severity of his psychiatric disorder in September 2005 and March 2008.  The reports of these examinations are adequate for rating purposes as they reflect the examiners interviewed and examined the Veteran, reviewed the claims file, reported the clinical findings in detail, and provided complete rationales for the opinions or conclusions stated.  See September 2005 VA examination report; March 2008 VA examination report; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes).

Accordingly, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  Evaluation of PTSD

The Veteran was initially granted service connection for PTSD in a September 2005 rating decision.  A 10 percent disability rating was assigned, effective October 20, 2004.  The Veteran maintains that a higher rating is warranted.

Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a) (2012).  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

The Veteran's PTSD is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. 

The next highest rating of 30 percent is assigned for PTSD under Diagnostic Code 9411 where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events).

After reviewing the medical and lay evidence of record, the Board finds that the Veteran's PTSD symptoms are congruent with the criteria for a 30 percent rating outlined above.  The record reflects that the Veteran has been employed, full time at the same job since 1994, and on September 2005 VA examination, he stated that he did not think his PTSD symptoms greatly affected his ability to be employed.  The VA examiner found that the Veteran's chronic PTSD was mild in part because he reported successful, stable employment since 1994.  The examiner also concluded that the Veteran's PTSD symptoms appeared to be affecting him somewhat but not in a serious way.  On March 2008 VA examination, the Veteran reported difficulties with his boss, but he continued to work 40 hours per week.  The examiner found that there was no indication that the difficulties related to the Veteran's boss were connected to his PTSD.

The Veteran's PTSD symptoms have only slightly affected his ability to maintain personal relationships inside and outside of the workplace.  On September 2005 VA examination, the Veteran stated that he had close friends and enjoyed many social and private leisure activities.  He reported that he enjoyed fishing, walks, and being a caller at the American Legion bingo hall.  He saw his friends on a weekly basis.  At the March 2008 VA examination, the Veteran reported that he primarily stayed at home, but he enjoyed yard work and went fishing occasionally.  He denied any difficulties with activities of daily living.  At the September 2012 hearing, he testified that got along with his family members.  Board Hearing Tr. at 15 (Sept. 2012).  He reported that he saw some friends on occasion, but lately it had become more difficult to get together because one friend had recently gone through a divorce and another was working "a lot of weekends."  Id. at 18-19. 

The Veteran's hearing testimony, VA treatment records, and September 2005 and March 2008 VA examination reports reflect that he experiences memory problems, intrusive thoughts and memories, and symptoms of numbing and avoidance.  On September 2005 VA examination, the Veteran described nightmares once to twice monthly, and night sweats two to three times per week.  In March 2008, the Veteran denied nightmares.

The Veteran's Global Assessment of Functioning (GAF) scores have ranged from 59 to 65.  GAF scores in this range are consistent with mild to moderate impairment in social and occupational functioning and are reflective of social and occupational impairment most congruent with a 30 percent rating.  See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) 46-47 (4th ed. 1994).

Given the extent of the Veteran's memory problems, intrusive thoughts and memories, and symptoms of numbing and avoidance, as well as some social isolation, the criteria for a 30 percent disability rating for PTSD have been satisfied.

The Veteran's PTSD symptoms do not, however, warrant the assignment of an even higher 50 percent rating.  A 50 percent rating is assigned for PTSD under Diagnostic Code 9411 where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  

Although the Veteran's PTSD is productive of mild to moderate occupational and social impairment, such impairment does not include reduced reliability and productivity as required for a 50 percent rating.  The record reflects the Veteran has denied symptoms of depression and any difficulties with his temper.  There is no indication that the Veteran suffers from impaired judgment or impaired abstract thinking.  There have been no reports of record of any panic attacks.  Although the Veteran noted at his September 2008 VA examination that he had grown more socially isolated, at his September 2012 Board hearing, he testified that he was not seeing his friends as often as before due to their unavailability.  There was no indication at the September 2012 Board hearing that the Veteran did not want to socialize with his friends due to his PTSD symptoms.  

The Veteran has also not exhibited other symptoms congruent with a 50 percent rating.  The Veteran has reported recent problems in the workplace with his boss, but the March 2008 VA examiner noted that the Veteran's concerns about going to work were related to interpersonal difficulties and not related to his PTSD.  The Veteran has been employed with the same employer since 1994, and works a 40-hour work week.  While the Veteran reported memory problems, the September 2008 examiner noted that he had no memory or concentration problems apparent during the evaluation.  He also had no trouble communicating with the examiner.  These symptoms are more reflective of the criteria for a 30 percent rating and do not more nearly approximate the level of severity in a 50 percent rating.

The Veteran has also not exhibited any symptoms that would warrant a rating in excess of 30 percent, to include symptoms such as (or equal in severity to) suicidal or homicidal ideation, obsessional rituals, panic attacks, or impaired impulse control.

In short, although the Veteran's PTSD is productive of occupational and social impairment consistent with a 30 percent rating, the criteria for a 50 percent rating, or higher, have not been shown.

The Board has considered whether staged ratings are appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings").  The Board finds that the Veteran's PSTD symptoms have been consistent with a 30 percent rating for the entire relevant time period here on appeal.  The Veteran's key PTSD symptoms-particularly his memory problems, intrusive thoughts and memories, sleep disturbances, and symptoms of numbing and avoidance-have been longstanding in nature, and the record does not indicate any significant increase or decrease in such symptoms during the appeal period.  Moreover, as explained above, symptoms warranting a 50 percent, or higher, rating have not been shown.  Accordingly, staged ratings are not warranted and the 30 percent rating the Board has assigned is appropriate for the entire period here on appeal.

The Board has also considered whether referral for an extraschedular rating is appropriate.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. § 3.321(b)(1) (2012).  Related factors include "marked interference with employment" and "frequent periods of hospitalization."  Id. 

When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id. 

As noted above, the Veteran's symptoms primarily involve memory problems, intrusive thoughts and memories, sleep disturbances, and symptoms of numbing and avoidance.  Such impairment is specifically contemplated by the rating criteria.  Hence, the rating criteria reasonably describe the Veteran's disability.  In short, there is no indication in the record that the average industrial impairment from the Veteran's PTSD would be in excess of that contemplated by the 30 percent rating; the Veteran's disability picture is not shown to be exceptional or unusual.  Therefore, referral for assignment of an extraschedular evaluation in this case is not in order.  Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). 

In summary, the evidence supports an initial rating of 30 percent, and no higher, for the Veteran's PTSD.  To that extent, the appeal is granted. 

III.  Earlier Effective Date

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012).  For service connection claims, the effective date is the day after separation from service or date entitlement arose, if a claim is received within one year of separation from service; otherwise the general rule applies.  38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012). 

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012).  The term "application" or "claim" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1 (2012). 

In this case, the Veteran seeks an award of service connection for PTSD prior to October 20, 2004, the effective date assigned by the RO based on the date of receipt of the petition to reopen the claim for this disability.  Specifically, the Veteran requests an effective date of March 2, 1990-the date of the Veteran's original claim for service connection for PTSD.

The Veteran filed a claim for service connection for PTSD that was received by the RO on March 2, 1990.  This claim was denied by a June 1990 rating decision, and the Veteran appealed.  In a February 1993 decision, the Board denied the Veteran's claim for service connection for PTSD.  The denial was based on the Veteran's lack of diagnosis of PTSD.  The Veteran did not appeal this decision to the Court, and it became final.  38 C.F.R. §§ 20.1100, 20.1104 (2012).

In May 2002, the Veteran submitted a statement that the RO construed as an informal claim for service connection for PTSD.  In August 2002, the RO denied the Veteran's petition to reopen a claim of entitlement to service connection for PTSD.  The Veteran was informed of this rating decision in a letter, dated in August 2002.  The Veteran did not appeal this denial, and it too became final.  38 C.F.R. §§ 20.302, 20.1103 (2012).

The Veteran did not submit a formal or informal claim for service connection at any time subsequent to the August 2002 decision and prior to October 20, 2004.

Under applicable law, as outlined above, the Board finds that the effective date of the award of service connection for PTSD can be no earlier than October 20, 2004.  See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(q)(1)(ii) (2012).

The Board has considered the arguments of the Veteran and his representative that the effective date for the award of service connection for PTSD should be the date of his original claim for service connection (specifically, March 2, 1990).  As noted above, however, the Veteran's original claim of entitlement to service connection for PTSD was denied by a final Board decision in February 1993, and a subsequent petition to reopen a claim of entitlement to service connection for PTSD was denied by a final rating decision in August 2002.  There is also no indication that service department records that were not associated with the file when the claim was first adjudicated were thereafter associated with the claims file to award an earlier effective date based upon the provisions set forth in 38 C.F.R. § 3.156(c).  Section 3.156(c) states that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.  Id.  Such records include service records that are related to a claimed in-service event, but do not include records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department.  See id.

Here, however, the Veteran's prior claims for PTSD were denied based on a lack of a current PTSD diagnosis.  The RO granted service connection for PTSD in September 2005 based on the Veteran's current diagnosis of PTSD.  Furthermore, as noted above, no outstanding service department records were associated with the claim subsequent to the February 1993 Board decision.  As such, the provisions set forth in 38 C.F.R. § 3.156(c) do not apply to the Veteran's claim for an earlier effective date.

The Veteran's claim of entitlement to an effective date prior to October 20, 2004 for the award of entitlement to service connection for PTSD is denied.

IV.  New and Material Evidence

The Veteran's appeal regarding hearing loss arises out of his contention that he suffered acoustic trauma in Vietnam, and developed bilateral hearing loss as a result of that trauma.  See Veteran's September 2009 Claim.

The Veteran's claim of entitlement to service connection for bilateral hearing loss was initially denied by a January 1988 rating decision on the grounds that he had no currently-diagnosed hearing loss disability.  In making this determination, the RO noted that hearing was normal at separation and on the then current VA audiometric examination.  At the time of the January 1988 rating decision, the evidence of record consisted of the Veteran's service treatment records and a July 1987 VA examination report.  The Veteran was notified of the January 1988 rating decision and his appellate rights by a letter dated February 19, 1988; however, he did not appeal.  Therefore, the January 1988 rating decision is final.  See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). 

In September 2009, the Veteran filed a request to reopen his previously denied claim of entitlement to service connection for bilateral hearing loss.  A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  Evidence is new if it has not been previously submitted to agency decision makers.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).  Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.  In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening.  Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Id. 

For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously denied claim, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).

Evidence obtained since the January 1998 rating decision includes an April 2009 VA treatment record.  In this record, the audiologist noted that the Veteran had a significant history of military noise exposure in Vietnam.  While exact numbers were not provided, the audiologist noted that the Veteran had "mild" hearing loss at 500 Hertz and 1,000 Hertz, and "moderate" hearing loss through 4,000 Hertz.  Word recognition was at 96 percent in each ear.  

The Veteran's claim was previously denied because the evidence did not reflect that the Veteran had a current bilateral hearing loss disability.  The evidence submitted since the January 1998 rating decision shows that the Veteran may have a hearing loss disability, as defined by 38 C.F.R. § 3.385.  This evidence is new in that it had not previously been submitted.  It is also material insofar as it relates to a previously unestablished fact necessary to substantiate the claim; namely, evidence of a current hearing loss disability.  The additional evidence being both new and material, the claim for entitlement to service connection for bilateral hearing loss is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).


ORDER

An initial 30 percent disability rating for PTSD is granted, subject to controlling regulations applicable to the payment of monetary benefits.

An effective date prior to October 20, 2004 for the award of service connection for PTSD is denied.

New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened.


REMAND

The Veteran seeks service connection for the reopened claim of entitlement to service connection for bilateral hearing loss.  Before the Board can adjudicate this claim on the merits, however, additional development is required.  

VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012). 

The Veteran contends that service connection for bilateral hearing loss is warranted because this condition was caused by his exposure to loud noise and resulting acoustic trauma during service.

The Board finds that a VA examination assessing whether the Veteran has a current hearing loss disability that was incurred during his military service is warranted in this case.  In making this determination, the Board notes that the Veteran's post-service VA records reveal that, in April 2009, a VA audiologist diagnosed the Veteran with "mild" hearing loss at 500 Hertz and 1,000 Hertz, and "moderate" hearing loss through 4,000 Hertz, bilaterally.  As such, because there is competent evidence showing that the Veteran has mild and moderate hearing loss, the Board finds that the first McLendon element has been satisfied. 

Turning to the second McLendon element, the Veteran's service records indicate that he likely suffered acoustic trauma in service as he was deployed to Vietnam.  The Veteran's DD Form 214 reflects that he received the Combat Infantry Badge, indicating that he was directly involved in combat.  The Board notes that the Veteran is competent to report that he was exposed to loud noises during service.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Accordingly, because the evidence of record indicates that the Veteran was exposed to loud noises during service, the second McLendon element has been satisfied. 

Further, turning to the third McLendon element, the Veteran's daughter testified at the Board hearing that she first noticed that the Veteran had hearing problems approximately 25 years ago.  See Board Hearing Tr. at 20-22 (Sept. 2012).  The Veteran's daughter is competent to testify regarding noticeable symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Furthermore, the Board notes that a VA audiologist in April 2009 noted, in conjunction with discussion of the Veteran's hearing loss symptoms, that he had a significant history of noise exposure in Vietnam.  Accordingly, the Board finds that there is evidence of record indicating that the Veteran's bilateral hearing loss may be associated with service, thereby satisfying the third McLendon element. 

Significantly, however, because there is insufficient medical evidence of record addressing whether the Veteran has a current hearing loss disability that was incurred during his military service, a VA examination and medical opinion addressing the etiology of his bilateral hearing loss is necessary for the Board to make a decision on this claim.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination to determine the nature and etiology of his claimed bilateral hearing loss.  The claims file, as well as any relevant files contained in Virtual VA, should be made available to and be reviewed by the examiner in conjunction with the examination.  After conducting an examination of the Veteran and performing audiological testing, the examiner should identify whether the Veteran has a current hearing loss disability in the left and/or right ears, as defined by 38 C.F.R. § 3.385. 

If a hearing loss disability is identified in either ear or both ears, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability had its clinical onset during active service or is related to any in-service acoustic trauma.  

For the purposes of this remand, the examiner should accept as true the Veteran's statements to the effect that he experienced significant acoustic trauma in service, including during his deployment to Vietnam.

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale must be provided for the opinion rendered.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 

2.  Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise 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. 2012).



______________________________________________
Donnie R. Hachey
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs