Citation Nr: 1312666 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-29 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the Veteran's claims file was transferred to the RO in Phoenix, Arizona in August 2010, during the pendency of this appeal. The Board observes that the RO adjudicated the issue as entitlement to service connection for PTSD. However, medical evidence of record reveals additional diagnoses of various acquired psychiatric disorders, to include PTSD, depression, and anxiety. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Therefore, the Board has recharacterized this claim to include all currently diagnosed acquired psychiatric disorders. As support for his claims, the Veteran testified at a videoconference hearing in December 2012 before the undersigned Veterans Law Judge of the Board. During, and even after, the hearing the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2012). FINDINGS OF FACT 1. PTSD has not been diagnosed in accordance with DSM-IV. 2. Psychiatric disability other than PTSD was first manifested after service, and has not been linked to injury or disease in service. 3. The preponderance of the competent and credible evidence shows the Veteran does not have a bilateral hearing loss disability for VA purposes at any point during the appeal that has been linked to service. CONCLUSIONS OF LAW 1. A psychiatric disorder, to include PTSD was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2012). 2. Bilateral hearing loss was not incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The RO notified the Veteran in July 2007, prior to the initial adjudication of the claims in December 2007, of the evidence and information necessary to substantiate his claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. This notice also advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained, relevant to these claims. The Veteran was also afforded VA examinations in July 2007 and August 2012 with respect to the claim for bilateral hearing loss. He underwent a psychiatric examination in July 2012. The Board finds the VA examinations and opinions adequate to decide the issues as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The examiners considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms warranting service connection, as well as when and where such symptomatology occurred. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran and his wife, through testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303. Disorders diagnosed after discharge may also be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for certain chronic disorders, including sensorineural hearing loss, may be established based upon a legal 'presumption' by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for PTSD, in particular, there must be: (1) medical evidence diagnosing this condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). However, if a Veteran's claimed stressor relates to fear of hostile military or terrorist activity, then lay testimony may establish the occurrence of the claimed in-service stressor, absent clear and convincing evidence to the contrary, if 1) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the symptoms are related to the claimed stressor; and 2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3). Additionally, under section 3.310(a) of VA regulations, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Acquired Psychiatric Disorder The Veteran's service treatment records do not reflect any symptoms associated with psychiatric impairment. When examined in connection with his discharge from service, it was noted there were no psychiatric abnormalities on clinical evaluation. Private treatment records dated in 1997 and 1998, reflect the Veteran reported experiencing work related stress which was thought to be producing complaints of chest pain, and he was assessed as having anxiety/depression. There was no suggestion in these records this was incurred in military service. Rather, in November 1997, and January 1998 records, it was specifically considered "job related." Approximately 10 years later, in June 2007, the Veteran presented to VA seeking an evaluation for PTSD. At that time, he had a positive screening for it as related to military service; however, no formal diagnosis was entered. Nevertheless, later records dated in August 2007, include PTSD as a diagnosis, as well as depressive disorder, NOS. VA records dated the next month reflect that the stressors considered to have precipitated PTSD included childhood sexual abuse, and military related events (observing rocket attacks and air craft accidents, as well as coming under fire). In regard to his military stressors, an October 2007 statement from the Veteran describes his service stressors as occurring at military bases in Vietnam (Da Nang), as well as in the Philippines and in the United States. Subsequently dated VA treatment records beginning in January 2008, add panic disorder with agoraphobia to the Veteran's psychiatric diagnoses, and include the notation that the Veteran's PTSD was considered to be related to his prior military traumas. However, in setting forth the DSM-IV criteria the Veteran met for the diagnosis, it did not describe whether criteria E or F under the DSM-IV were satisfied. The Veteran was examined for VA purposes in connection with his claim in July 2012. At that time it was found he did not meet the diagnostic criteria for PTSD under DSM-IV. Rather, the Veteran's diagnoses were anxiety disorder, NOS; and depressive disorder, NOS. The report from this examination shows that the examiner accepted the Veteran's reported stressors (combat related and witnessing aircraft accidents), but did not find the Veteran to have met criterion C for the diagnosis of PTSD under DSM-IV, a persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness. (The Veteran continued to work after service in a civilian capacity as an aircraft mechanic/inspector with the Department of the Defense, a very similar employer and position he had on active service.) Accordingly, it was concluded a diagnosis of PTSD was not warranted. Weighing the evidence, the Board concludes that a basis to award service connection for PTSD has not been presented. As indicated above, the early evidence raised a question as to whether PTSD was diagnosed in accordance with DSM-IV criteria, and indeed whether it was related to service, given the Veteran's report childhood abuse. As such, the Veteran underwent a formal VA examination to address these questions in July 2012. That examiner interviewed the Veteran, and reviewed his medical history, and as described above explained the criteria for a diagnosis of PTSD under DSM-IV were not met. That conclusion is accorded the most probative value because one of the examination purposes was to consider that very question. This is unlike the other records where PTSD was listed as a diagnosis, but either did not address whether all the criteria were met, or omitted a discussion of some of them. Given the conclusion that the record does not support the finding the Veteran has PTSD diagnosed in accordance with DSM-IV, service connection is not warranted, and further inquiry into whether the claimed in-service stressors occurred is unnecessary. With respect to the Veteran's other diagnosed psychiatric disorders, it must be observed that there is no medical record of any such disability until many years after service, and there is no competent evidence that the Veteran exhibited symptoms of these other illnesses in service as would permit the conclusion that they were incurred in service, as is necessary to establish service connection. There have been lay statements attesting to excessive alcohol use in service, but this habit has been indicated to have been present since the Veteran's teen years, and not otherwise identified as a symptom of any currently diagnosed psychiatric illness. (The Veteran apparently overcame this habit long ago after the birth of his children.) Other described behaviors are all in the post service years, which again would not be evidence of the incurrence of disease or injury in service as to permit an award of service connection. Accordingly, a basis upon which to establish service connection for psychiatric disability, other than PTSD has not been presented. Bilateral Hearing Loss The Veteran reports that he suffers from bilateral hearing loss as a result of his military service and, specifically, due to his proximity to aircraft engines without hearing protection while in service. With respect to this claim of service connection for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Next, the Board observes that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, evidence of a current disability (i.e., one meeting the requirements of 38 C.F.R. § 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Service treatment records reflect no complaints, treatment, or findings of hearing loss disability for VA purposes. However, the Board finds that the Veteran's account of in-service noise exposure as a result of his proximity to jet engines without ear protection is consistent with his DD Form 214, which lists his MOS as aircraft mechanic. Accordingly, the Board accepts the Veteran's contentions of active duty acoustic trauma. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. However, in order to establish service connection, there still must be evidence of a current disability and a demonstrable link between that disability and the in-service trauma. In this regard, the Veteran's post-service VA treatment records dating from June 2007 to April 2012 do not reflect a current diagnosis of a bilateral hearing loss disability, as defined for VA purposes. The Veteran was initially examined in July 2007 by VA QTC services. The Veteran reported a history of in-service acoustic trauma without the aid of hearing protection. At that time, the examiner indicated the Veteran's hearing was within normal limits for both ears. In an effort to satisfy the above requirement of a current disability, the Veteran submitted several private audiograms, dated in June 2006, June 2007, and January 2008. Neither the 2006 or 2007 reports established the presence of a hearing loss disability for VA purposes, based on the puretone thresholds reported. They suggested a right ear hearing disability based on the speech recognition tests reported, but since it was not made clear whether this was a Maryland CNC test, that conclusion is in doubt. The January 2008 report, indicated a right ear hearing disability for VA purposes based on both the puretone thresholds reported, as well as the speech recognition test results. It also indicated a left ear hearing disability, based on the speech recognition test results. Again, however, it was not indicated whether this was a Maryland CNC test. Significantly, none of these private treatment documents dated in 2006, 2007 and 2008, suggested there was a relationship between the hearing acuity that was recorded, and the Veteran's military service that concluded more than 25 years earlier. In August 2012, the Veteran was provided a second VA audiological evaluation. At that time, the Veteran again reported a history of in-service acoustic trauma without the aid of hearing protection. However, concurrent audiological findings failed to reveal hearing loss that qualified as disabling with respect to either the right or left ears. See Hensley, 5 Vet. App. at 157; but see 38 C.F.R. § 3.385. Based on these findings and a review of the pertinent lay and clinical history, the August 2012 VA examiner opined that it was less likely than not that any hearing loss was etiologically related to the Veteran's reported in-service noise exposure. Significantly, the examiner did not question the Veteran's account of such exposure, but instead reasoned that there was no significant shift in hearing level during military service which indicates that there was no noise induced hearing loss. The examiner cited to an Institute of Medicine report that concluded noise induced hearing loss occurs immediate, i.e., there is no support for delayed onset hearing loss. Under these circumstances, the evidence does not support the conclusion that any current hearing loss disability was incurred in service, and therefore, service connection is not warranted. The Board is also aware that the Veteran asserted during his December 2012 videoconference hearing that his bilateral hearing loss is due to or aggravated by his service-connected tinnitus. However, he has not supported this conclusory statement with any authority, and he is not shown to possess any expertise on the subject as to require an inquiry into the question by a professional. ORDER Entitlement to service connection for acquired psychiatric disorder, to include PTSD is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs