Citation Nr: 1306057	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  06-37 808	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Entitlement to service connection for a right ear hearing loss disability.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

A. Hinton, Counsel







INTRODUCTION

The Veteran, who is the appellant, served on active duty from May 1966 to June 1969.
  
This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In November 2008 and in August 2011, the Board remanded the claims.  In the remand in August 2011, the Board bifurcated claim into service connection for PTSD and for a psychiatric or psychological disorders other than PTSD.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection specifically for a psychiatric disability of PTSD encompass claims for service connection for all psychiatric disabilities, and an appellant generally is not competent to diagnose his mental condition, he is only competent to identify and explain the symptoms that he observes and experiences); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (separately diagnosed psychiatric conditions can be service connected, but could not be separately rated unless they resulted in different manifestations).  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

In August 2012 in a rating decision, the RO granted service connection for anxiety disorder.  The claim of service connection for PTSD remains on appeal.

During the appeal period, in October 2010 in a rating decision, the RO granted service connection for a left ear hearing loss disability, which is no longer in appellate status.  In a decision in August 2011, the Board denied service connection for tinnitus, but did not consider secondary service connection.




In September 2011 on VA audiology examination, the VA examiner stated that the Veteran's tinnitus was as likely as not a symptom associated with the hearing loss.  With the grant of service connection for each ear, the record raises the question of secondary service connection, following the previous denial of service connection for tinnitus, and the question of new and material evidence to reopen the claim of service connection for tinnitus on a secondary basis is referred to the RO for appropriate action. 


FINDINGS OF FACT

1.  A right ear hearing loss disability had onset in service.

2.  During the appeal period, the Veteran does not have a diagnosis of PTSD related to service that conforms to the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., (DSM-IV), of the American Psychiatric Association in accordance with 38 C.F.R. § 4.125(a). 


CONCLUSIONS OF LAW

1.  The criteria for service connection for a right ear hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (2012).

2.  The criteria for service connection for PTSD have not been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).







The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

As the Board is granting the claim of service connection for the right ear, VCAA compliance need not be addressed as to this claim. 

On the claim of service connection for PTSD, the following applies. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre- and post- adjudication VCAA notice by letters in March 2006, in October 2010, and in August 2011.  


As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).  

To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication.  The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in August 2012.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).  

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained service treatment records and VA records. 

In October 2011, the Veteran was afforded a VA examination.  The Board has reviewed the examination report.  As the examination report is based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 




As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Principles of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service). 

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 





For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b).  

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

Principles of service connection specifically applicable to the analysis of the hearing loss and PTSD service connection claims are discussed below in the respective sections of the analysis.

II. Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply.

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007).



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; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses).  

Further, the Veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  As a lay person the Veteran is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).   

When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran.  38 U.S.C.A. § 5107(b).




III. Merits of Claims 

A. Right Ear Hearing Loss

Evidentiary Facts

The Veteran's service record, DD Form 214, Report of Transfer or Discharge, and other service records, show that he served in the Army, and had a military specialty of supply specialist.  His medals included the Republic of Vietnam Campaign Medal.  He served in Vietnam from May 1968 to May 1969.  He was assigned to a supply unit.  

Documents from the U.S. Army & Joint Services Records Research Center (JSRRC) show that during his assignment in Vietnam, the Veteran's unit, 19th Supply and Service Company, was assigned to US Army Support Command, Qui Nhon, 1st Logistical Command and based at Qui Nhon from June 1, 1968, to February 1969.  JSRRC confirmed that a mortar attack hit the Depot at Qui Nhon on December 15, 1968, and that the 1st Logistical Command reported attacks on Qui Nhon by mortars and small arms fire on January 3, 1969, and February 16, 1969.

The service treatment records include the March 1966 reports of medical history and medical examination (pre-induction).  The March 1966 examination records show that the Veteran reported that he had had ear trouble with poor hearing in the left ear.  In commenting on this report by the Veteran, the examiner stated that there was no evidence of abnormality of the ear currently.  

On examination, the findings by audiogram (after conversion from American Standards Association (ASA) units to International Standard Organization (ISO) units), in decibels, were recorded as follows:








HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
30
25
LEFT
15
10
10
20
15

In May 1969 on separation examination, the Veteran indicated that he had trouble with his ear, but he did not have a hearing loss problem.  On examination, the findings by audiogram were identical to the findings on the March 1966 audiogram report.  
 
In May 1969, the Veteran was place on a physical profile for hearing (H-3), indicating a hearing loss defect with duty assignment limitations, namely, no assignment involving frequent exposure to loud noises or the firing of weapons,  three days after the audiogram, for left ear sensorineural hearing loss and for right ear high pitched nerve type hearing loss.  The physical profile was endorsed by a Medical Board of three officers in the Army Medical Corps.  The Board considered the medical examination in May 1969.

After service, in June 1971, the Veteran stated that he had decreased hearing since adolescence.  Audiology testing showed:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
/
66
LEFT
80
75
90
/
110+

In October 1997, audiology testing showed:










HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
25
/
25
LEFT







In September 2005, a private audiology testing in graphic form, the threshold in the right ear at 3000 and 4000 Hz were of over 70 decibels.

In September 2010, on VA examination, the VA examiner stated that the findings on separation contained the same thresholds as the enlistment thresholds, which was most likely not a valid audiogram.  The VA examiner noted that the Veteran was exposed to loud noise in service from mortar fire and travel in C-130 cargo aircraft, and also from loud noise during basic training.  Teva examiner noted that the Veteran also had occupational noise exposure.  On audiology testing, pure tone thresholds, in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
55
80
75
LEFT
95
90
+
+
+

Speech recognition was 94 percent in the right ear and 54 percent in the left ear.

The pertinent diagnosis was right ear sensorineural hearing loss.  The VA examiner expressed the opinion that right ear hearing loss was not attributable to service, because the audiogram in October 1997 showed normal hearing and that the Veteran had normal hearing for 28 years after service and that aging was the likely etiology factor in the right ear hearing loss.  

In September 2011 on a VA audiology examination, on audiology testing, pure tone thresholds, in decibels were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
70
90
90
LEFT
95
95
+
+
+

Speech recognition was 94 percent in the right ear and 48 percent in the left ear.  The diagnosis was hearing loss in the right ear.  The VA examiner expressed the opinion that the right ear hearing loss was less likely as not related to military service, because the audiogram on separation indicated normal hearing in the right ear and no significant threshold shift between the March 1966 and May 1969.  

The VA examiner stated that the subsequent physical profile record, noting right ear high pitch nerve type hearing loss, was not supported by an audiogram.  The VA examiner expressed the opinion that the fact that clinical data in May 1969 and October 1997 showed normal hearing in the right ear indicates that the physical profile statement was in correct and that the hearing loss was most likely the result of aging, and not military service.

Analysis

For the purpose of applying the laws administered by VA, impaired hearing will be considered 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.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385.  Hensley  v. Brown, 5 Vet. App. 155, 157   (1993) (citing as authority Current Medical Diagnosis and Treatment, 110-11 (Stephen A. Schroeder et al. eds. (1988)).


The service treatment records show in May 1969, the Veteran was place on a physical profile for hearing (H-3), indicating a hearing loss defect with duty assignment limitations, namely, no assignment involving frequent exposure to loud noises or the firing of weapons, three days after the audiogram, for left ear sensorineural hearing loss and for right ear higher pitched nerve type hearing loss.  

The physical profile was endorsed by a Medical Board of three officers in the Army Medical Corps.  The Medical Board considered the medical examination in May 1969.  The audiogram in May 1969 showed normal hearing, that is, no auditory threshold over 20 decibels in the right ear.  

After service in 1971 an private audiogram showed an auditory threshold of 66 decibels at 4000 Hz, which meets the standard for a hearing loss disability under 38 C.F.R. § 3.385(an auditory threshold of 40 decibels or greater at any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz).  

On VA examination in September 2010, the diagnosis was right ear sensorineural hearing loss.  VA considers sensorineural hearing loss as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309(a).   The VA examiner stated that the findings on the audiogram on separation were most likely not valid.  The VA examiner noted that the Veteran was exposed to loud noise in service from mortar fire and flying in cargo aircraft, and from loud noise during basic training.  The VA examiner noted that the Veteran also had occupational noise exposure.  The VA examiner expressed the opinion that right ear hearing loss was not attributable to service, because the audiogram in October 1997 showed normal hearing and that the Veteran had normal hearing for 28 years after service and that aging was the likely etiology factor in the right ear hearing loss.  As the VA examiner did not account for the audiogram findings in 1971, the VA examiner's opinion has little probative value.






In September 2011 on a VA audiology examination, the VA examiner expressed the opinion that the right ear hearing loss was less likely as not related to military service, because the audiogram on separation indicated normal hearing in the right ear and no significant threshold shift between the March 1966 and May 1969.  

As the VA examiner did not account for the discrepancy in the record between a normal audiogram on separation, followed three days later by a H-3 physical profile for high frequency nerve type hearing loss in the right ear by a Medical Board, the opinion that the right ear hearing loss was less likely as not related to military service, because the audiogram on separation indicated normal hearing, has little probative value. 

Under 38 C.F.R. § 3.303(b) when a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 

As the service treatment records contain evidence of a nerve type hearing loss in the right ear by a Medical Board, as it is improbably that the Medical Board incorrectly characterized normal hearing on the audiogram on separation as hearing loss, rather Medical Board had other evidence and as the VA examiner strongly suggested the audiological findings on separation were invalid. 

As the Medical Board in service found a nerve type hearing loss in the right ear, as a right ear hearing loss disability is currently shown, and as the hearing loss preceded the postservice presbycusis, the current hearing loss is clearly not attributable to a postservice intercurrent cause. 

For this reason, a right ear hearing loss disability under 38 C.F.R. § 3.385 was shown in service and after service as a chronic disease and service connection is warranted under 38 C.F.R. § 3.303(b).




No right ear hearing loss as defined under 38 C.F.R. § 3.385 is shown at the May 1969 separation examination prior to discharge from service.  However, service connection may still be established if it is shown that a current hearing loss is related to service.  He is not required to show that he met the criteria of 38 C.F.R. § 3.385 for hearing loss at separation if he currently is shown to have a hearing loss otherwise shown to have begun in service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).
 
The medical evidence shows that the Veteran has a present right ear hearing loss for VA compensation purposes, as reflected in audiological findings since June 1971, except for the October 1997 FHP test findings discussed above.  The Veteran has, in essence, attested that he has had hearing problems since during the period of service ending in May 1969.  He essentially attributes this condition to his exposure in service to weapon noise in Vietnam and basic training, and riding military aircraft.  The Veteran is competent to report as to the symptoms of hearing loss and as to there being a chronicity of hearing difficulties observed since during service.  

The Veteran's report of right ear hearing loss symptoms since during service ending May 1969 is also credible given the abnormal audiology findings shown in the May 1969 physical profile report in service.  This is also credible given that the Veteran's verified proximity to loud noise in Vietnam and that expected in basic training.  The fact that the Veteran underwent a physical profile for hearing during service is probative of the inservice results of acoustic trauma due to exposure to loud noise.  

In light of the competent evidence of the Veteran's in-service exposure to attendant loud noise in performing duties; the audiological findings, in that the right ear hearing loss was found to be productive of moderate to severe high pitched nerve type hearing loss; later audiology findings beginning only two years after service showing a present right ear hearing loss; and the Veteran's competent and credible report essentially of a continuity of hearing difficulties since service; the Board finds that the left ear hearing loss had its onset during service and service connection is warranted for right ear hearing loss.  


B.  PTSD

Establishing service connection for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred.  38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997).  The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner.  See 38 C.F.R. § 4.125(a) (2012).

During the pendency of the appeal, in a rating decision in August 2012, the RO  granted service connection for anxiety disorder. 

At no time during the pendency of the claim has PTSD been a diagnosed.  On VA examination in October 2011, the VA examiner concluded that the Veteran did not meet the full DSM-IV diagnostic criteria for PTSD.  The VA examiner concluded that the Veteran's psychiatric disability picture was most appropriately diagnosed as anxiety disorder, linked to the Veteran's Vietnam experience.  

In sum, there is no diagnosis of PTSD by a medical professional.  Further, the Veteran is not shown to be competent to diagnose PTSD.  Although he is competent to attest as to symptoms he has observed, a psychiatric diagnosis of PTSD is not a simple medical condition for which lay evidence can make a diagnosis, and clearly, his reported symptoms have not later supported a diagnosis by a medical professional.  Nor is PTSD a condition under case law for which lay observation has been found to be competent to establish the presence of disability.  Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent).





As there is no diagnosis of PTSD, it is unnecessary to consider whether the claim other theories of service connection, including secondary service connection.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply, and service connection is not warranted for PTSD.  38 U.S.C.A. § 5107(b). 


ORDER

Service connection for a right ear hearing loss disability is granted.

Service connection for posttraumatic stress disorder (PTSD) is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs