Citation Nr: 1321368 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-21 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Board notes that the Veteran's claim was initially adjudicated as entitlement to service connection for PTSD. However, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App 1 (2009). In this case, the Veteran has been assessed as having various diagnoses, including PTSD and an anxiety disorder not otherwise specified. Therefore, the Board has recharacterized the issue as reflected on the title page. A review of the Virtual VA paperless claims processing system mostly reveals that the Veteran's representative submitted an appellate brief in June 2013. Otherwise, the records in the Virtual VA filed are either duplicative of the evidence of record or are not pertinent to the issue being decided herein. The issue of entitlement to service connection for an acquired psychiatric disorder is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Bilateral hearing loss did not manifest in service or sensorineural hearing loss within one year thereafter, and the Veteran has not been shown to currently have bilateral hearing loss that is causally or etiologically related to his military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service, nor may bilateral sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1133 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in August 2008 prior to the initial decision on the claim in November 2008. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letter about the information and evidence that is necessary to substantiate his claim and of the division of responsibilities in obtaining such evidence. The notice letter also explained how disability ratings and effective dates were determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. He has not identified any other outstanding records that are pertinent to his claim for service connection for bilateral hearing loss. Furthermore, the Veteran was afforded a VA examination in December 2008 in connection with his claim for service connection for bilateral hearing loss. The Board finds that the December 2008 examination and medical opinion regarding hearing loss is adequate. The opinion is predicated on a full reading of the Veteran's claims file, and the examiner considered all of the pertinent evidence of record, to include lay statements. He provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. In fact, the examiner specifically discussed the findings in service and discussed how hearing loss resulting from noise exposure, particularly in light of the Veteran's contentions, generally presents or develops. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of hearing loss has been met. 38 C.F.R. § 3.159(c)(4). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the hearing loss 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). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis 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 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 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, 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. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. His service treatment records do not document any complaints, treatment, or diagnosis of hearing loss. Although service treatment records show that the Veteran had otitis media in his right ear in December 1976 (left ear was clear at the time), the otitis media appears to have been acute and transitory and to have resolved prior to his separation. In fact, a clinical evaluation found the Veteran's ears and drums to be normal at the time of his separation examination in April 1979. Moreover, there is no indication that he had any hearing loss associated with the hearing loss. The July 1974 enlistment audiogram revealed pure tone thresholds, in decibels, as follows (in standards pursuant to International Standards Organization (ISO)-American National Standards Institute (ANSI)): HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 -- 0 LEFT 10 0 0 -- 0 The April 1979 separation audiogram revealed pure tone thresholds, in decibels, as follows (in ISO-ANSI standards): HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 0 0 LEFT 5 5 0 0 0 The Board notes that normal hearing was demonstrated in both ears as shown by the July 1974 enlistment examination and April 1979 separation examination report. Thus, there is affirmative evidence showing that the Veteran did not meet the criteria for hearing loss pursuant to VA standards at the time of his separation from service. Moreover, the Veteran did not seek treatment immediately following his separation, and there is no evidence of any hearing loss within one year of his military service. In fact, the earliest record of a diagnosis of bilateral hearing loss was a December 2008 VA examination report. Therefore, the Board finds that bilateral hearing loss did not manifest in service or within one year thereafter. The Board also notes that the Veteran has not asserted continuity of symptomatology of hearing loss since service. Indeed, he has never made any statement that the disorder actually had it onset during service or that it has existed since that time. Rather, the Veteran has only contended that his current hearing loss is related to acoustic trauma in service when he was exposed to diesel engine noise working as a boatswain mate. Nevertheless, the Board does note that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has argued that he was exposed to acoustic trauma during his period of service and that this was the injury sustained from which his bilateral hearing loss resulted. The Veteran is considered competent to relate a history of noise exposure during service, and there is no reason to doubt the credibility of his statements regarding military noise exposure. See 38 C.F.R. § 3.159(a)(2). In addition, the post-service medical records show that the Veteran has current bilateral hearing loss by VA standards. See 38 C.F.R. § 3.385. Thus, the remaining question is whether the Veteran's current bilateral hearing loss is related to his acoustic trauma in service. The Veteran was afforded a VA audiological examination in December 2008 during which the audiologist reviewed the claims file and history and performed a physical examination complete with the requisite tests measuring hearing acuity. The VA audiologist diagnosed the Veteran with mild to moderately severe sensorineural hearing loss in the 2000 to 8000 Hertz range for the right ear and mild to moderate sensorineural hearing loss in the 3000 to 8000 Hertz range for the left ear. Based on a complete review of the evidence and the examination findings, the audiologist concluded that the Veteran's hearing loss disability was not caused by or a result of an event in service. In his rationale, the December 2008 VA audiologist considered the Veteran's contentions and symptomatology of hearing loss, to include in-service and post-service noise exposure. The audiologist stated that he would have expected some reduction in hearing thresholds by separation considering the Veteran's in-service noise exposure; however, none of his tested thresholds exceeded normal limits according to the evidence of record. He commented that the entrance screening showed hearing levels that remained essentially stable and within normal limits throughout the Veteran's service. The audiologist further noted that the Veteran's separation examination revealed hearing thresholds that were well within normal limits. In addition, the December 2008 VA audiologist stated that hearing loss due to noise exposure is not known to be progressive after the fact. In other words, noise damage does not manifest years later assuming the damaging noise exposure ceases, as it is not a progressive disease. Therefore, the audiologist concluded that any further hearing loss subsequent to service would likely be due to or aggravated by other causes. The Board notes the argument of the Veteran's representative presented in the July 2009 VA Form 646, which contains a sentence taken from a cited article, stating the following, "A typical hearing test (audiogram) of a person with noise induced hearing loss will initially show only a high frequency loss at 4000 Hz. Four thousand Hz is a high frequency." In stating this, he argued that the United States Coast Guard hearing screenings conducted at the entrance and separation examinations were "unacceptable" for VA purposes and stated that the examiner did not test or record at the 1000 Hertz level and above for entrance and did not test or record above the 2000 Hertz level for separation. He claimed that the examiner instead resorted to speculation. However, as the December 2008 VA audiologist has stated, the accuracy of the Coast Guard hearing screenings assumes that they were done by a trained technician in an appropriate environment. As illustrated above, the only field that was not populated with a numerical value was at the 3000 Hertz level for the entrance examination. Otherwise, a "0" value was assigned for the 4000 Hertz category at both screenings. This does not alter the fact that the VA audiologist found the Veteran's hearing to be within normal limits at the time of separation from service. The law is clear that it is the Board's duty to assess the credibility and probative value of evidence. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995). Moreover, the Board notes that there are no opinions of record that support the Veteran's claim other than his own statements linking his current hearing loss to in-service noise exposure. Based on the foregoing, the Board attaches the greatest probative weight to the opinion of the December 2008 VA audiologist who had the benefit and review of all pertinent medical records and who provided a rationale supported by the record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted. ORDER Service connection for bilateral hearing loss is denied. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. With respect to the Veteran's acquired psychiatric disorder issue, the Board notes that there appear to be outstanding medical records. In this regard, the Veteran told the September 2009 VA examiner that he had sought treatment at the VA Medical Center in Togus, Maine, during the first half of 2009 and indicated that he was diagnosed with an anxiety disorder not otherwise specified. However, records of such treatment have not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to seek such records. 38 C.F.R. § 3.159(c). Therefore, the RO should obtain and associate with the claims file any outstanding VA treatment records pertinent to the issue of entitlement to service connection for a psychiatric disorder. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for an acquired psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should also obtain any outstanding VA medical records, including treatment records from the VA Medical Center in Togus, Maine, dated in 2009. 2. After completing the above action, the RO/AMC should conduct any other development as may be indicated as a consequence of the action taken in the preceding paragraphs. Further development may include affording the Veteran an additional VA examination or obtaining an additional medical opinion. 3. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).