Citation Nr: 1320723 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-43 536 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a neck disability. 4. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from April 1998 to January 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran requested a hearing before the Board when he submitted his substantive appeal in September 2009. The Veteran was advised that he was scheduled for a hearing before the Board in January 2011. However, the Veteran did not report for the hearing. He submitted a statement in February 2011 and indicated that he was unable to attend the hearing before the Board due to inclement weather. Consequently, his request for a hearing is considered withdrawn. 38 C.F.R. § 20.705(d) (2012). The issues of entitlement to service connection for tinnitus, a neck disability, and a psychiatric disability are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT The Veteran does not currently have impaired hearing of the right or left ears as defined by VA to constitute a disability. CONCLUSION OF LAW The Veteran does not have right or left ear hearing loss disabilities that are the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated October 2007. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the January 2010 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if the disorder became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Veteran contends that he has bilateral hearing loss which resulted from daily exposure to live fire exercises with tanks during service. The Veteran's service medical records contain his March 1998 entrance examination that included audiometric testing which revealed puretone thresholds of 10, 5, 5, 10, and 5, decibels in the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz and 5, 5, 10, 10, and 10 decibels in the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. The Veteran's October 2001 separation examination included audiometric testing which revealed puretone thresholds of 15, 10, 15, 10, and 5, decibels in the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz and 15, 10, 10, 15, and 15 decibels in the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. The Veteran denied hearing loss on reports of medical history forms prepared in conjunction with the entrance and separation examinations. An August 2007 statement from J. Lutz, MSW, LCSW shows that the Veteran reported a decrease in hearing acuity. At a December 2008 VA audiometric examination, the Veteran related exposure to weaponry noise with the occasional use of ear protection and daily exposure to live tank fire. He denied post-service noise exposure. Audiometric testing revealed puretone thresholds of 15, 15, 20, 20, and 20 decibels in the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz, and 15, 20, 20, 20, and 20 decibels for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition scores were 98 percent in both ears. The examiner concluded that the Veteran's hearing acuity was clinically normal from 500 to 4000 Hertz for both ears. The Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. The Board acknowledges that the Veteran is competent to report that he experienced decreased hearing since service. Lay testimony is competent to establish the presence of observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the Veteran's opinion that his claimed hearing loss disability is related to his active duty service is insufficient to provide the requisite etiology of the claimed disability because that matter requires medical expertise. A lay person is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms. 38 C.F.R. § 3.159(a)(1) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements regarding his claimed hearing loss disability being related to his active duty service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. The Board finds that the evidence of record does not show that the Veteran's hearing impairment met VA standards for hearing loss disability at any time during service or at any time since service. Additionally, the audiometric testing performed at the December 2008 VA audiometric examination does not support a finding of right or left ear hearing disability as defined by VA and the other medical evidence of record does not contain any reference to treatment for hearing loss complaints. Although the statement from Ms. Lutz indicates that the Veteran reported decreased hearing acuity, those records do not include treatment for any hearing loss disability and Ms. Lutz is a social worker and not a medical doctor or audiologist capable or providing treatment for the claimed hearing loss disability. The audiograms contained in the Veteran's service medical records and at the December 2008 VA audiological examination do not show right or left ear hearing loss disability as defined by VA. 38 C.F.R. § 3.385 (2012). In order for service connection to be granted for a claimed disability, there must be evidence of the current existence of the claimed disability. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Veteran's hearing thresholds and the reported word recognition scores at the VA examination of record did not meet the criteria for disability under VA regulations. While the Veteran is competent to report decreased hearing since service, the results of specific testing are required to qualify the condition as a disability for VA purposes are needed, and only a qualified individual can provide that evidence. Accordingly, absent a definitive showing of the Veteran having a bilateral hearing loss disability, his claim for service connection for right and left ear hearing loss must be denied. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2012). ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the remaining claims can be reached. The Veteran contends that his claimed disabilities were incurred in service. Specifically he claims that tinnitus, a neck disability, and a psychiatric disorder have been present since service and have worsened since that time. The Veteran reported that he was exposed to live fire exercises with tanks daily during his service. He also indicated that he has had symptoms of anxiety, depression, social phobia, and nightmares and has been treated for bipolar disorder, posttraumatic stress disorder (PTSD), and anxiety disorder since service. He stated that his neck disability resulted from carrying heavy packs and participating in long road marches during service. The Veteran's service separation document shows that his military occupation specialty was orders/file clerk. The Veteran's service medical records are negative for any reference to treatment for the claimed disabilities. Post-service treatment records show treatment for various psychiatric disorders including PTSD and cyclothymia and treatment for neck pain. In an October 2007 statement, A. Gigante, D.C., indicated that the Veteran reported that his neck condition was related to injuries and traumas he received during active duty service. The Veteran reported tinnitus at a VA neurological examination in October 2007. He also reported treatment for depression, anxiety, and neck pain. A review of the claims file does not show that the Veteran has undergone VA examinations to determine the etiology of the claimed psychiatric disability or neck disability. In service connection claims, VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159(c) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for requesting an examination is low. The Board finds that a VA examination is needed to ascertain the etiology of the claimed psychiatric disability and neck disability. With regard to the claim for tinnitus, the Veteran was afforded a VA audiological examination in December 2008 at which time he was diagnosed with bilateral tinnitus. The examiner initially indicated that he was unable to render an opinion without review of the Veteran's separation examination. At another VA audiological examination in December 2008, the examiner opined that tinnitus was not caused by or as a result of active duty service. The examiner indicated that there was no current ear-related service-connected condition which would support a relationship between tinnitus and active duty service. The examiner noted that the Veteran's hearing sensitivity was clinically normal and that tinnitus was associated with conditions other than hearing loss which required referral to another provider for determination of etiology. Because of its inherently subjective nature, a layman is considered competent to report the observable manifestations of ringing in the ears that could support a diagnosis of tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). The December 2008 VA examiner did not consider the Veteran's report of ringing in his ears since service in rendering the opinion. Furthermore, the examiner stated that another provider was needed to offer an opinion. Consequently, another examination, with a different physician, and nexus opinion is necessary before a decision on the merits of the claim can be reached. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA audiological examination for with an examiner who has not previously examined the Veteran. The examiner must review the claims file and must note that review in the report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is related to his active duty service. The examiner must consider the Veteran's statements regarding continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). A complete rationale for the opinion expressed must be provided. 2. Schedule the Veteran for a VA mental disorders examination. The examiner must review the claims file and must note that review in the report. The report of examination should include a complete rationale for all opinions expressed. Any necessary tests, including psychiatric testing, if appropriate, should be obtained. The examiner should provide the following information: a.) Provide a full multiaxial diagnosis pursuant to DSM-IV. Specifically state whether each criterion for a diagnosis of PTSD is met. b.) If a diagnosis of PTSD is appropriate, comment upon the link between the current symptomatology and any in-service stressor reported by the Veteran and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to the Veteran's active service. c.) With regard to the diagnosed psychiatric disorders of record, including cyclothymia, the examiner should specifically state whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disability is related to the Veteran's active service. The examiner must consider the Veteran's statements regarding continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 3. Schedule the Veteran for a VA examination of the cervical spine with the appropriate specialist. The clinician should explain the basis for any opinion and base the opinion on sufficient facts or data with reference to medical literature, if possible. The examiner must review the claims file and note that review in the report. In addition to the service medical records, the examiner should consider the Veteran's statements regarding his symptoms in service and his statements of continuous symptoms of neck pain since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should provide a diagnosis for the Veteran's claimed neck disability and opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed neck disability is due to or was caused by the Veteran's active service. 4. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs