Citation Nr: 1306190	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  10-42 962	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for tinnitus.

2.  Entitlement to an initial compensable rating for left C5-6 disc herniation (a neck disability).

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to an acquired psychiatric disorder, to include posstraumatic stress disorder (PTSD), depression, and insomnia.


REPRESENTATION

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




ATTORNEY FOR THE BOARD

T. Adams, Counsel


INTRODUCTION

The Veteran served on active duty from October 2000 to February 2001, and from October 2003 to April 2005, including service in the Southwest Asia Theater of operations from March 2004 to March 2005.

This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

The Board is cognizant of the recent decision of the U.S. Court of Appeals for Veterans Claims, Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In Clemons, the Court found that the Board erred in not considering the scope of the Veteran's claim for service connection for PTSD as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record (in that case, a diagnosis of major depressive disorder).  While the Veteran had been previously denied service connection for depression (claimed as a nervous problem and insomnia) in a final decision, in light of Clemons, and based on the medical evidence of record which includes diagnoses of PTSD, depression, and insomnia, the Board has recharacterized the Veteran's claim as one for service connection for an acquired psychiatric disorder, to include PTSD, depression, and insomnia.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression, and insomnia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's service-connected tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260 (2012).

2.  Throughout the course of this appeal, the Veteran's neck disability has been manifested by neck pain, but not by forward flexion greater than 30 degrees but not greater than 60 degrees, or muscle spasm or guarding severe enough to result in an abnormal spinal contour, or with incapacitating episodes.

3.  The Veteran is not currently shown to have a bilateral hearing loss disability as defined by VA standards.


CONCLUSIONS OF LAW

1.  There is no legal basis for the assignment of a schedular rating in excess of 10 percent for tinnitus.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

2.  The criteria for a 10 percent initial rating, and no more, for the Veteran's neck disability have been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Codes 5235-5243 (2012).

3.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1154(b), 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

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

The record reflects that the Veteran was provided all required notice by letter mailed in October 2008, prior to the initial adjudication of the claims.

With regard to the Veteran's increased rating claims, the Board notes that the Veteran is challenging the initial ratings assigned following the grants of service connection in the January 2009 rating decision.  The Court has held that, 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 in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, supra, at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).  Therefore, no further notice, beyond that afforded in the context of the Veteran's initial claims for service connection, is needed under the VCAA with regard to the claims.  Moreover, under 38 C.F.R. § 3.159(b)(3)(i) , there was no duty to provide the Veteran with VCAA notice upon receipt of a NOD.

The Board also finds the Veteran has been afforded adequate assistance in regard to the claims.  Service treatment records (STRs) and pertinent post-service medical records.  In addition, the Veteran has been afforded appropriate VA examinations with regard to his claims.  Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence.

As regards the Veteran's claim for service connection for bilateral hearing loss, the Board acknowledges that the Veteran has been afforded a VA examination, but that a medical opinion has not been obtained in response to this claim.  However, the Board has determined that VA has no duty to obtain a medical opinion in response to this claim.  In this case, there is no competent evidence of a bilateral hearing loss disability in service, no competent evidence of an in-service event or injury resulting in a bilateral hearing loss disability, and no indication that the disability may be associated with the Veteran's active service.  As he has not presented a prima facie case for service connection for a bilateral hearing loss disability, a remand for an opinion is not required at this point.  See 38 U.S.C.A. § 51l03A(d); 38 C.F.R. § 3.159(c)(4).  See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam).

As regards the Veteran's increased rating claims, the Board notes that neither the Veteran nor his representative has indicated any symptomatology relevant to his increased rating claims or have alleged that the disabilities have increased in severity since the last examinations.  Thus, the Board finds that remand for an additional VA examinations is not required in this instance.  Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf.  The Board finds that no additional RO action to further develop the record on the claims is warranted.

In sum, the duties to notify and assist have been satisfied, and the Board will accordingly address the merits of these claims.

Increased Rating Claims

Legal Principles

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  To evaluate the severity of a particular disability, it is essential to consider its history.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2012).

Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant.  See 38 C.F.R. §§ 3.102, 4.3 (2012).  In addition, where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2012).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.

The Court has also held that in a claim of disagreement with the initial rating assigned following a grant of service connection separate ratings can be assigned for separate periods of time, based on the facts found.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Where entitlement to compensation has already been established, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.

The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness or pain on motion.  38 C.F.R. § §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled."  38 C.F.R. § 4.40.

The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements.  In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.

With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations.  For the purpose of rating disability from arthritis, the cervical vertebrae are considered a group of minor joints, ratable on a parity with a major joint.  38 C.F.R. § 4.45 (2012).

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

A.  Tinnitus

The Veteran was awarded service connection for tinnitus in a January 2009 rating decision and was assigned a 10 percent rating, effective October 14, 2008.  He appealed the rating assigned.

The Veteran's tinnitus is currently rated under 38 C.F.R. § 4.87, DC 6260.  Under DC 6260, only a single 10 percent rating is warranted for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, DC 6260, Note (2) (2012).  This is the maximum schedular rating assignable for tinnitus.

In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005), the Court held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus.  VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).  In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to VA's interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limit a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.

The Veteran's service-connected tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available for such disability.  See 38 C.F.R. § 4.87, Diagnostic Code 6260.  The Veteran argues that he is entitled to a rating in excess of 10 percent for his tinnitus.  He is competent to report the symptoms of his disability.  However DC 6260 precludes an evaluation in excess of a single 10 percent rating for tinnitus.  As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear or a higher schedular rating for tinnitus, the Veteran's claim for such a benefit is without legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

B.  Neck disability

Historically, the Veteran was originally awarded service connection for left C5-6 disc herniation (claimed as a neck/back disability) in a January 2009 rating decision and was assigned a noncompensable rating, effective October 14, 2008.  He appealed the rating assigned.

Under the rating criteria effective from September 26, 2003, lumbosacral spine disorders are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below).  38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242. IVDS will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, Diagnostic Code 5243.

Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply.  An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine warrants a 100 percent evaluation.

Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  For purposes of evaluation under DC 5243, an "incapacitating episode" is a period of acute signs and symptoms due to IVDS that require bed rest as prescribed by a physician and treatment by a physician.

There are several notes set out after the diagnostic criteria, which provide the following.  First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code.  Second, for purposes of VA compensation, forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is to 240 degrees.

Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation.  Fourth, each range of motion should be rounded to the nearest 5 degrees.
Fifth, unfavorable ankylosis is a condition in which the entire cervical spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Sixth, disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.

Private treatment records include a March 2007 report which reflects the Veteran's complaint of increased neck pain which radiated to his shoulders.  On examination, he was diagnosed with cervical disc displacement.  In February 2008, he complained of moderate neck pain rated 4 out of 10 on the pain scale.  Active ranges of motion were severely restricted by pain.  On motion, palpation, subluxations were observed in the cervical area.  The assessment included cervical disc displacement.

The Veteran was afforded a VA spine examination in December 2008 at which time he presented with a history of an in-service injury to his neck in 2004 followed by chiropractic treatment in March 2005 which included electric shock therapy, NSAIDs, strengthening, and stretching along with home cervical traction.  A March 2008 MRI examination showed a small C5-6 herniated disk on the left side.  The Veteran seemed to be "getting by" with home physical therapy in the form of traction, heat, and Aleve; did not require a neck brace; and had no trouble with his posture or walking.  If he had any radiation of pain it was to the left arm, but was seldom.

On examination, palpation of the neck region did not reveal spasm, weakness, or tenderness.  Motor strength in the triceps, biceps, deltoid, and trapezius was normal.  Reflexes in the left upper extremity showed a biceps jerk, which was 1+ and a triceps jerk, which was 2+.  No motor weakness or sensory deficit could be demonstrated in a C5-6 distribution.  There was no atrophy.

Range of motion in the cervical spine was normal.  The diagnostic impression was left C5-6 disk herniation without limiting neurological sequelae.  The examiner opined that the Veteran's neck disability did not interfere with activities of daily living.  Range of motion was given in degrees and did not show any drop off or pain following repetitive use.  No painful motion, weakness, tenderness, or spasm could be demonstrated.

VA treatment records include a November 2008 report which reflects an assessment of chronic neck pain, but the Veteran did not want any pain medication and was satisfied with nonpharmacological pain relief modalities.

The Board finds that the Veteran is not entitled to an initial compensable disability rating under the General Rating Formula for Diseases and Injuries of the Spine or under the formula for rating IVDS.  In this regard, the Veteran had a normal range of motion of the cervical spine on VA examination in December 2008.  In addition, the clinical findings in the record show no incapacitating episodes and while the Veteran has subjectively complained of pain from his neck to his shoulders and left arm, there are no clinical findings that would warrant the assignment of a separately compensable neurological disorder attributable to the service-connected neck disability.

However, the Board finds that, after factoring the Veteran's complaints of constant neck pain throughout the course of this appeal, but with essentially normal range of motion, his cervical spine disability warrants a 10 percent rating.  Again, the intent of the rating schedule is to recognize painful motion with joint pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  Thus, although the Veteran's range of motion does not meet the schedular criteria for a 10 percent rating under The General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is nonetheless warranted to compensate the Veteran for the ongoing daily pain related to the service-connected neck disability.  There is no evidence, however, that the Veteran's disability is manifested by symptoms that more closely approximate the criteria for a 20 percent rating.  As such, a 10 percent rating, and no more, is warranted in this case. 

Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating in excess of that discussed above.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Extraschedular Consideration

The Board must still consider whether the Veteran is entitled to extra-schedular ratings under the provisions of 38 C.F.R. § 3.321(b)(1).  See Bagwell v. Brown, 9 Vet. App. 337 (1996).  The threshold factor for extra-schedular 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.  If the 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.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Here, the Board finds that the disability picture presented by the Veteran's tinnitus and left C5-6 disc herniation is appropriately contemplated by the rating schedule is appropriately contemplated by the rating schedule.  Specifically, there is no medical or lay evidence of record that shows that the Veteran's tinnitus and neck disability have caused marked interference in employment or frequent periods of hospitalization.  In addition, as previously noted, the record does not reflect, nor does the Veteran contend, that his neck disability has caused periods of incapacitation.  The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order.
Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

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 opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests sensorineural hearing loss or psychosis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309.

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

For Veterans with service in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.  Under this law and regulation, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2011.  38 C.F.R. § 3.317(a)(1).  In this case, the Veteran claims that he has bilateral hearing loss that is related to his service.  However, there is no evidence that the Veteran has been diagnosed with bilateral hearing loss during the pendency of this claim.  In addition, he has not claimed, nor does the evidence raise the issue of, any other undiagnosed illness that manifested to a degree of 10 percent or more following discharge from service.  Accordingly, this provision is inapplicable to this case.

For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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.

VA regulations, however, do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Further, where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).

In the case of any Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  38 U.S.C.A. § 1154(b).

The Veteran contends that he has a bilateral hearing loss disability due to acoustic trauma during his service.  His Form DD-214 reflects a military occupational specialty of combat engineer.  Therefore, 38 U.S.C.A. § 1154(b) is applicable.  However, even if the Veteran was exposed to acoustic trauma in service, a nexus between his current disability and the in-service exposure to acoustic trauma must be shown.

The Veteran's STRs are devoid of findings, complaints, symptoms, or diagnoses pertaining to bilateral hearing loss.  The Veteran's reported March 2000 enlistment examination recorded normal hearing as shown by audiometric testing that revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
15
5
5
LEFT
0
0
5
10
10

As noted by these results, there was no evidence of bilateral hearing loss upon enlistment.

Notwithstanding, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  See Hensley  v. Brown, 5 Vet. App. 155, 159 (1993).

Critically however, the record does not contain post-service evidence of a current bilateral hearing loss disability. Simply put, there is no evidence that the Veteran has a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385, and neither the Veteran nor his representative has presented or identified existing audiometric testing results that show a bilateral hearing loss disability that meet the requirements of that regulation.

In this regard, on VA audio examination in December 2008, the Veteran stated that he thought he heard pretty well and only occasionally asked for repetitions.  However, his wife stated that he did not hear as well as before.

The Veteran reported exposure to loud noise prior to service from weapons and during service from demolitions, bombs, and weapons with the benefit of hearing protection.  He also reported recreational and occupational noise exposure from weapons with the benefit of hearing protection.

The report of the audiological evaluation reflects that on testing, pure tone thresholds, in decibels, were, as follows:




HERTZ



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

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 98 percent in the left ear.  Pure tones from 250 to 8000 Hz in both ears were within normal limits.  The examiner indicated that hearing was within normal limits in both ears and stated that in accordance with VA regulations, pure tone thresholds for the test frequencies 500 to 4000 Hz did not meet the criteria for hearing loss.
"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  In this case, there is no medical evidence showing that a bilateral hearing loss disability has been present at any time during the pendency of the claim and the report of a current VA examination shows the Veteran does not have bilateral hearing loss; he has accordingly not shown a current disorder for which service connection can be granted, whether on a direct basis or a presumptive basis. 

VA must consider all favorable lay evidence of record.  38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA.

A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  Lay evidence can, in some circumstances, also be competent to establish a medical diagnosis.  See Davidson, supra.

In this regard, the Board recognizes that there is no bright line rule that laypersons are not competent to offer diagnoses or etiology opinions.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology).  Evidence, however, must be competent evidence in order to be weighed by the Board.  Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case.

In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding.  Id.  In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable.  The Board finds that the question of whether the Veteran currently has a current bilateral hearing loss disability related to in-service acoustic trauma is too complex to be addressed by a layperson.  While the Veteran and his spouse are certainly competent to testify to symptoms he observed during and since his service, such as hearing loss, he is not competent to offer an opinion as to the cause of this disability.  This connection or etiology is not amenable to observation alone.  Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals.  Hence, the Veteran's opinion of the etiology of any current bilateral hearing loss is not competent evidence and is entitled to low probative weight.

For the foregoing reasons, the claim for service connection for bilateral hearing loss must be denied.  The Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).








ORDER

An initial rating in excess of 10 percent for tinnitus is denied.

Subject to the law and regulations governing payment of monetary benefits, an in initial 10 percent rating for the cervical spine disability is granted.

Service connection for bilateral hearing loss is denied.


REMAND

Additional development is needed prior to the disposition of the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, insomnia, and depression.

VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate.  38 U.S.C.A. § 5103A (West 2002).  The Board regrets the additional delay that will result from this remand.  Nevertheless, the Board is constrained by the fact that proper adjudication of the claim requires additional development.

The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, depression, and insomnia, that is the result of his service.

Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Medical Disorders (4th ed. 1994) (DSM-IV), (2) credible supporting evidence that the claimed in-service stressors actually occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in- service stressor(s).  See 38 C.F.R. §§ 3.304(f), 4.125(a).

Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans.  See 75 Fed. Reg. 39,843 -39,852 (effective July 13, 2010).  These revised regulations apply in cases like the Veteran's, which were appealed to the Board prior to July 13, 2010, but not decided by the Board as of that date. 75 Fed. Reg. 41092 (July 15, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3) ).

In cases involving such stressors, the revised regulation requires that: (1) a VA psychiatrist or psychologist, or contract equivalent, must confirm that the reported stressor is adequate to support a diagnosis of PTSD; (2) the reported stressor be consistent with the places, types, and circumstances of the veteran's service; and (3) the veteran's symptoms be related to the reported stressor.  38 C.F.R. § 3.304(f)(3); Relaxation of Evidentiary Standard or Establishing In-Service Stressors in Claims for Posttraumatic Stress Disorder-38 C.F.R. § 3.304(f)(3), (VBA) Fast Letter No. 10-05, at 1 (July 16, 2010) (on file with author).  Effectively, the revised regulation requires that if the stressor reported by the veteran is consistent with the places, types, and circumstances of service, instead of taking steps to corroborate the reported stressor, VA must obtain from a VA or VA-contracted psychiatrist or psychologist a medical opinion as to whether the reported stressor is adequate to support a diagnosis of PTSD.

In this case, the Veteran's service personnel records reflect that the Veteran served in Iraq from March 2004 to March 2005 with a military occupational specialty of combat engineer.

The Veteran's STRs include a March 2005 post deployment health assessment which reflects that the Veteran indicated that in the past month he had an experience that was so frightening, horrible, or upsetting that he tried hard not to think about it or went out of his way to avoid situations that reminded him of it; and was constantly on guard, watchful, or easily startled.

Private treatment records include an October 2007 report which reflects the Veteran's complaint of insomnia and depression.  He indicated that he had been reliving his experiences in Iraq.  He was diagnosed with insomnia and depression.

VA treatment records include a November 2008 mental health nursing note that indicates that the Veteran had a positive PTSD screen.  Another November 2008 mental health note states that he did not particularly think he had PTSD, but is an Iraq War veteran who was involved in many dangerous operations including finding IEDs, witnessing several explosions, and sustaining concussions.  However, he believed anxiety and depression were related to his lack of sleep.  He was diagnosed with insomnia, depression, and rule out PTSD.  He was scheduled to be evaluated for a TBI (traumatic brain injury).

In this case, VA has not yet obtained, from a VA or VA-contracted psychiatrist or psychologist, an opinion that is consistent with the requirements under the revised 38 C.F.R. § 3.304(f)(3).  Hence, the claims file should be provided to a VA or VA-contracted psychiatrist or psychologist.  Following a complete and thorough review of the claims file, the VA or VA-contracted psychiatrist or psychologist should provide a typewritten opinion as to whether the Veteran's reported stressors are adequate to support a diagnosis of PTSD, and, whether the Veteran's symptoms are related to the claimed stressors.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

As noted above, given the other psychiatric diagnoses of record, the Board finds that, consistent with the ruling in Clemons, the Veteran's appeal for service connection for psychiatric disability must be broadly construed to encompass both claims for service connection for an acquired psychiatric disorder, to include PTSD, depression, and insomnia.

As the RO has not addressed the matter of service connection for PTSD, that matter is being remanded for RO consideration of the matter, in the first instance, to avoid any prejudice to the Veteran.  Moreover, further medical opinion that addresses the relationship, if any, between each diagnosed psychiatric disability and service would be helpful in resolving the expanded claim on appeal.  See 38 U.S.C.A. § 5103A(d)(2)  (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon, supra.
The Board notes that post-service VA treatment records that have been associated with the claims file pertain to medical treatment received by the Veteran through November 2008.  However, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  A review should be conducted of the electronic file, and if documents contained therein are deemed to be relevant to the issue on appeal and are not duplicative of those already found in the paper claims file, action should be taken to assure that those records are made available (whether by electronic means or by printing) to any medical provider who is asked to review the claims file and provide medical opinions in conjunction with the development requested herein.  38 C.F.R. § 3.159(c)(1) and (2).  Such records should be obtained and associated with the claims file before the VA examination is scheduled.

Accordingly, the case is REMANDED for the following actions:

1.  The RO or the AMC should furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record.

In its letter, the RO should explain what is needed to substantiate the claim for service connection for PTSD, to include under the revised version of 38 C.F.R. § 3.304(f).

The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period).

2.  The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records pertaining to treatment of the Veteran's acquired psychiatric disorder, to include all pertinent VA records for the period since November 2008.
3.  Then, schedule the Veteran for a VA psychiatric examination or evaluation in order to determine the nature and etiology of any psychiatric disorder(s) which may be present.  The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions.  Any further indicated tests and studies (to include psychological studies, if warranted) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should identify all current psychiatric disorder(s) found.  With respect to each psychiatric diagnosis, the VA examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder: (1) had its onset in or is otherwise related to the Veteran's period of active duty or (2) if a psychosis is diagnosed, the examiner should indicate whether it was manifested within one year after the Veteran's period of active duty.

If PTSD is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that he has PTSD due to a claimed stressor that is adequate to support the diagnosis, and that is related to the Veteran's claimed stressor(s) based upon a reasonable fear of hostile military or terrorist activity.  In rendering the requested opinions, the physician should specifically consider and discuss the Veteran's contentions, the lay statements of record, his service personnel and treatment records, and his post-service private and VA medical records.

The examiner should set forth all examination findings, along with a complete rationale for any opinion reached, in a printed report. 

4.  Thereafter, the RO or the AMC should undertake any other development deemed appropriate.

5.  Then, the RO or the AMC should readjudicate the issues on appeal.  If the benefits sought on appeal are not granted to the appellant's satisfaction, the appellant and his representative should be provided a supplemental statement of the case and an appropriate period of time for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The appellant 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 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).


______________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs