Citation Nr: 1317289	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  11-00 558	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

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

2.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Teena Petro, Agent


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel




INTRODUCTION

The Veteran served on active duty from October 1965 to September 1968. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 and August 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA.

The issue of entitlement to an increased initial rating for PTSD is addressed in the REMAND that follows the order section of this decision. 


FINDING OF FACT

No right ear hearing loss disability has been present during the pendency of this claim.


CONCLUSION OF LAW

Right ear hearing loss disability was not incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), 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. 

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 in a letter mailed in October 2009, prior to the initial adjudication of the claim in November 2009. 

The record also reflects that the service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained.  In addition the Veteran has been afforded an appropriate VA audiology examination.  The Veteran has also been afforded an opportunity for a hearing before the RO or the Board, but declined to do so. 

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. 

Accordingly, the Board will address the merits of the Veteran's claim. 

II.  Legal Criteria

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

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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  

"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 valid 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).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

III.  Factual Background and Analysis

The Veteran's STRs are silent for complaints or findings of right ear hearing loss disability. 

VA currently uses ISO (ANSI) units.  Service department audiometric readings taken prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units.  At the time of the Veteran's October 1965 enlistment physical examination, his right ear hearing acuity, now converted to ISO units, was as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
25
5
0
0
-5

On discharge examination in September 1968, hearing in the right ear was 15/15 for whispered and spoken voice.

Post-service, an October 2009 VA examination report notes that the Veteran reported a history of noise exposure in Vietnam while on assignment to guard a portion of the perimeter in front of 105mm artillery guns.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
10
5
5
10
20

Speech audiometry revealed speech recognition ability of 100 percent in the right ear.  The examiner noted that the Veteran exhibited hearing within normal limits for the right ear.

Even conceding that the Veteran was exposed to artillery noise during service, the evidence does not show any right ear hearing loss disability in service.  There is also no evidence showing that the Veteran has had sufficient right ear hearing loss to qualify as a disability for VA compensation purposes at any point since service.  Moreover, the October 2009 VA examination report shows that no right ear hearing loss disability was present.  Therefore, the Board concludes that the preponderance of the evidence establishes that right ear hearing loss disability has not been present at any time during the pendency of this claim.  

With respect to whether the Veteran's own statements can establish a current disability here, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes 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), (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.  The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue.  In this case, the Board acknowledges that the Veteran is able to observe problems hearing; however, the Board does not believe that the Veteran has the expertise required to determine whether any such problems amount to right ear hearing loss disability by VA standards.  In any event, even assuming that the Veteran's statements are competent evidence of the presence of right ear hearing loss disability, his statements clearly are of less probative value than the VA examination report showing that his hearing impairment is not sufficient to qualify as a disability for VA compensation purposes.

The Board has duly considered the benefit of the doubt doctrine.  38 U.S.C.A. § 5107; see also Gilbert, supra.  However, the preponderance of the evidence is against the Veteran's claim.  As such, that doctrine is not applicable in the instant appeal and his claim must be denied.


ORDER

Entitlement to service connection for right ear hearing loss disability is denied.


REMAND

The Board finds that further development is required before the claim of entitlement to an increased initial rating for PTSD is adjudicated. 

In December 2010 correspondence, the Veteran reported receiving mental health treatment for the past five years from his private physician, Dr. T.  He also indicated receiving private mental health treatment from Dr. C. beginning in 2009.  Of record is a December 2009 psychological evaluation from Dr. C.: however, it is unclear if there are other outstanding treatment records from this private psychologist.  There is no indication in the claims file or Virtual VA that an attempt has been made to obtain these private treatment records.  
  
Also, a June 2012 VA PTSD examination report indicates that the Veteran was seen at the VA in November 2011 for a PTSD and depression screen and for medication management.  There are no VA treatment records currently associated with the claims file or Virtual VA.  

Therefore, further development to obtain any outstanding, pertinent VA and private records is in order.

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  The RO or the AMC should undertake appropriate development to obtain a copy of all outstanding records pertinent to the Veteran's claim, to include records of the Veteran's private physician (Dr. T.) and his private psychologist (Dr. C.), as well as any pertinent VA treatment records.

If any requested records are not available, the claims file should be annotated to reflect such and the Veteran and his representative notified.

2.  The RO or the AMC should also undertake any other development it determines to be warranted. 

3.  Then, the RO or the AMC should readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his agent 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 action, if otherwise in order. 

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).


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This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court 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).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs