Citation Nr: 1309746 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 11-00 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a gastrointestinal disorder. 4. Entitlement to service connection for a low back disorder. 5. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from August 2006 to November 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the above service connection issues, but granted service connection for PTSD and assigned a 30 percent evaluation for that disability, effective November 10, 2009-the day following the Veteran's discharge from service. By a November 2010 rating decision, the Veteran's PTSD rating was changed to 50 percent disabling, effective November 10, 2009. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2012; a transcript of that hearing is associated with the claims file. (The issues of service connection for tinnitus, gastrointestinal disability, and low back disability, as well as the PTSD rating question, are addressed in the remand that follows the decision below.) FINDING OF FACT The Veteran does not have impaired hearing acuity as defined by VA. CONCLUSION OF LAW The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in November 2009 that provided information as to what evidence was required to substantiate the claim of service connection for hearing loss and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further action is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a January 2012 hearing before the undersigned. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim decided herein. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran has averred, particularly at his hearing before the undersigned in January 2012, that he should be service connected for bilateral hearing loss. He noted that he worked on large-scale diesel generators and other machines as an electrician during service. While training to learn how to repair those items, the Veteran's unit were not provided with enough sets of hearing protection and the Veteran stated that he was told to "just put his fingers in his ears" for protection. Moreover, the Veteran indicated that while in Afghanistan, his unit was the subject of some friendly fire, which landed fairly close to where he was stationed, exposing him to combat noise-shells that were the "size of a Volkswagen"-as well. While the Veteran experienced such noises during service, no current disability has been shown. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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 (2012). Additionally, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley, supra. In this case, the Board has reviewed the Veteran's service treatment records. The Veteran had audiograms taken in January 2006, August 2006, March 2007, and September 2008. None of these audiograms demonstrates a decibel loss to allow for a conclusion that the Veteran has impaired hearing under the VA standard set forth in 38 C.F.R. § 3.385. Following discharge from service, the Veteran underwent a VA audiologic examination in June 2010. On that examination, the Veteran's audiometric scores again did not rise to the level of a diagnosis of impaired hearing that qualifies as a disability for VA purposes. His speech discrimination scores were 100 percent in both ears, which also does not allow for a finding of impaired hearing for VA disability purposes, as defined under 38 C.F.R. § 3.385. Moreover, the VA audiologist at the Veteran's June 2010 VA examination noted that the Veteran's hearing was clinically normal and he was not diagnosed with any bilateral hearing loss. The Board has additionally reviewed the Veteran's VA and private treatment records that have been associated with the claims file, and there is no evidence that he has been diagnosed with hearing loss, or that any audiometric data before the Board allows it to find that, for VA purposes, the Veteran has impaired hearing. Furthermore, while the Board acknowledges that the Veteran adamantly believes that he has hearing loss, he is not competent to provide a diagnosis of such. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Because impaired hearing has not been shown, the Board finds that service connection for hearing loss must be denied. See 38 C.F.R. §§ 3.102, 3.303, 3.385; Brammer v. Derwinski, 3 Vet. App. 223 (1995). In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for hearing loss is denied. REMAND The Veteran testified at his January 2012 hearing that he saw Dr. W.F. for PTSD every week for 2 years, but that he was no longer seeing him for treatment because he was time-limited out. The Board notes, however, that the only record from Dr. W.F. is a psychiatric evaluation from April 2010; it does not appear that any attempt to obtain any records from Dr. W.F. has been made. Accordingly, the Board finds that a remand of that issue is necessary in order to attempt to obtain records from Dr. W.F. Moreover, any ongoing private and VA treatment records should also be obtained, with respect to any issue remanded herein. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). As for the service connection issues, the Board finds that VA examinations are necessary for the Veteran's claimed tinnitus, gastrointestinal, and low back disorders. First, with regards to the tinnitus claim, the Board notes that the Veteran underwent an audiologic examination in June 2010-approximately 8 months after discharge from service. The Veteran was shown to have tinnitus during that examination, but the examiner opined that the tinnitus was not related to service because the Veteran's hearing acuity was normal and there were no complaints of tinnitus in the service records; additionally, she opined that she was not qualified to give an opinion as to whether the Veteran's tinnitus was related to any other medical conditions (other than hearing loss). The Board notes that at his January 2012 hearing, the Veteran stated that he had noise exposure both due to working with diesel generators and due to combat noise. He also testified that he had very little hearing protection in service due to the limited supply available. Finally, the Veteran stated that he had tinnitus during military service. As noted above, the Veteran had combat and other noise exposure during military service. Given the Veteran's testimony, and because the VA audiologist noted that there could be causes of the Veteran's tinnitus other than hearing loss, a VA opinion from an ear, nose and throat (ENT) specialist is necessary. Thus, the Board finds that a new VA examination is required on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As for the claimed gastrointestinal disorder, the Veteran stated that he has had continuing gastrointestinal symptomatology since his deployment in Afghanistan. He stated that one day he had feelings that his "stomach was on fire" and also that he had an increased acidic count that has led to bowel issues, including diarrhea. The Veteran reported that he has an increased risk of ulcers, irritable bowel syndrome (IBS), and gastroesophageal reflux disease (GERD) for which he takes Nexium, and an internal hemorrhoid. The Veteran's service treatment records document that the Veteran had issues with abdominal pain and acid reflux during service, as well as blood in his stool and diarrhea. On the basis of this evidence, the Board finds that enough evidence exists in the record to obtain a VA examination to determine the current nature of the Veteran's claimed gastrointestinal/stomach issues and whether such are related to service. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Finally, with regard to the Veteran's low back claim, the Board notes that no VA examination of the lumbar spine has been obtained. The Veteran stated in his hearing that he was told that he had flattened discs in service and that he has continued to experience back pain and other symptoms, similar to those he experienced in service. The Veteran's service treatment records document that he had a July 2009 x-ray that revealed mild disc space narrowing, and that he had several ongoing complaints and treatment for chronic low back pain during the months just prior to discharge. The Veteran averred that he initially injured his back in a training exercise when he fell into a concrete foxhole. The Board notes that the Veteran was treated for a right knee injury, but the records do not demonstrate any back injury or treatment for his back at that time. Nevertheless, on the basis of the above evidence, the Board finds that there is a basis for obtaining a VA examination of the Veteran's claimed low back disorder to determine the nature of any disorder and whether such is related to service. See Id. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the East Orange VA Medical Center, Brick CBOC, or any other VA medical facility that may have treated the Veteran since December 2009 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his claimed tinnitus, low back disorder, gastrointestinal/stomach disorder, or PTSD, which are not already of record, including Dr. W.F. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination with an ENT specialist in order to determine the nature and etiology of his tinnitus. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. After review of the claims file and examination of the Veteran, the examiner should ascertain whether the Veteran has tinnitus, and if so, whether it is more likely, less likely or at least as likely as not (50 percent or greater probability) related to the Veteran's period of military service. The examiner should discuss the Veteran's lay evidence regarding onset of tinnitus during military service, and the fact that he was exposed to combat noise as well as generator and other machine noise while in service. Medical reasons for accepting or rejecting the Veteran's statements should be set forth in detail. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any low back disorder. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including x-rays, and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should delineate all of the low back disorders found, including any arthritis or disc disease. The examiner should address whether any low back disorder found is more likely, less likely or at least as likely as not (50 percent or greater probability) related to the Veteran's period of military service. The examiner should discuss the July 2009 x-ray showing mild disc space narrowing, as well as the several instances of treatment prior to discharge from service for chronic low back pain and lumbago. The examiner should also discuss the Veteran's lay evidence regarding similarity of current symptoms to those demonstrated in service. The medical reasons for accepting or rejecting the Veteran's statements should be set forth in detail. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of all gastrointestinal disorders. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should set forth all of the gastrointestinal disorders found, including GERD, IBS, or internal hemorrhoids, if extant. The examiner should address whether each gastrointestinal disorder found is more likely, less likely or at least as likely as not (50 percent or greater probability) related to the Veteran's military service. The examiner should discuss the noted diarrhea, gastritis, abdominal pain, or other gastrointestinal/stomach symptomatology shown in service. The examiner should also discuss the Veteran's lay evidence regarding similarity of current symptoms to those demonstrated in service. The medical reasons for accepting or rejecting the Veteran's statements should be set forth in detail. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 6. Following the above development, the originating agency should review the claims file and re-adjudicate the Veteran's claims of service connection for tinnitus, low back disability, and gastrointestinal disability. The claim for a higher rating for PTSD should also be re-adjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims 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 F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs