Citation Nr: 1321929 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 09-36 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1967 to December 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This case was previously before the Board in July 2012, at which time it was remanded for further development, to include providing the Veteran with examinations for each of the disabilities on appeal. The August 2012 examination provided with respect to hearing loss was satisfactory. However, the September 2012 psychiatric examination with March 2013 addendum opinion was inadequate for adjudicatory purposes. As a result, that claim must again be remanded to ensure compliance with the remand directive. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD and depressive disorder, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Left ear hearing loss for VA purposes has not been shown. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify 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 July 2007 that provided information as to what evidence was required to substantiate the claim 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 development is required with respect to the duty to notify. Duty to Assist Next, VA 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 without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. 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. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused 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 Veteran's claim. In compliance with the Board's July 2012 remand, VA obtained the Veteran's Social Security Administration records. Additionally, VA provided the Veteran with an audiometric examination of his hearing in September 2012. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiner performed a thorough clinical evaluation, then offered an opinion as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the July 2012 remand instructions with respect to the issue of hearing loss. Stegall v. West, 11 Vet. App. 268 (1998). 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). Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 and as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered 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, 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. In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis The Veteran's service treatment records show that his hearing was tested at the time of service entrance in October 1967. Audiometric readings in the left ear were listed as pure tone thresholds of 0 at 500 Hertz, -5 at 1000 Hertz, -5 at 2000 Hertz and 10 at 4000 Hertz. (Notably, while it is unclear whether these readings are recorded in ANSA or ISO format, they are within the range of normal hearing in either case.) On an accompanying health questionnaire, he denied experiencing ear, nose, or throat trouble or having worn hearing aids. On service separation in November 1971, the physician did not note any diagnosed disabilities of the ears or ear drums. It does not appear that he was given an audiometric evaluation, but he did test 15/15, bilaterally, on whispered voice testing. The Veteran asserts that he has difficulty hearing and he has submitted lay statements from family members attesting to the excessive volume of his radio and television because of this. The Veteran attributes his hearing loss to his noise exposure in service, specifically gun fire at the rifle ranges without hearing protection. The Veteran was provided a VA audiological examination in September 2012. His pure tone thresholds, in decibels, in his left ear were measured as follows: 25 at 500 Hertz, 15 at 1000 Hertz, 25 at 2000 Hertz, 30 at 3000 Hertz, and 30 at 4000 Hertz. Speech recognition in the left ear was 100 percent. The examiner diagnosed sensorineural hearing loss in the left ear in the 500 to 4000 Hertz range. Notably, the examiner also diagnosed sensorineural hearing loss in the right ear in the 500 to 4000 Hertz range, as well as tinnitus, and offered the opinion that the Veteran's military noise exposure was at least as likely as not the cause of his hearing loss. In this instance, the Veteran is seeking service connection only for left ear hearing loss, because his claim of service connection for hearing loss has already been granted with respect to the right ear. The central question is whether a current hearing loss disability in the left ear, as defined by VA regulations, exists. Hearing loss disability for VA purposes is strictly defined according to regulation and is based on a mechanical application of the audiometric testing results to the required hearing acuity levels set forth in 38 C.F.R. § 3.385. In this instance, on audiometric examination the Veteran demonstrated hearing loss in the right ear which satisfied the requirements, but had better hearing acuity in his left ear and did not satisfy the requirements. Although he had an average pure tone threshold of 25 decibels, and had readings of 30 decibels at two different frequencies, he did not have readings of 26 or more decibels at three different frequencies as required in 38 C.F.R. § 3.385. As such, there is currently no demonstrated hearing loss disability in the left ear. The Veteran is considered competent to describe the symptoms he personally experiences and he has described difficulty hearing with both ears and a need for increased volume on the television and radio. The Board has no reason to question his credibility as to this issue. However, because the diagnosis of a hearing loss disability for VA purposes under 38 C.F.R. § 3.385 is based on the results of audiometric testing, the Veteran is not competent to provide evidence with respect to whether he has a hearing loss disability that satisfies the regulatory requirement. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), noting general competence of lay persons to testify as to symptoms, but not a medical diagnosis and noting by example the competence of lay testimony with regard to a broken leg, but not a form of cancer). Rather, competent medical evidence, that is, evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion is required to determine if the Veteran's loss of hearing acuity in his left ear constitutes a disability for VA purposes. 38 C.F.R. §§ 3.159, 3.385. The Board acknowledges both the Veteran's subjective experience of decreased hearing acuity in both ears and the opinion of the VA examiner that the level of hearing loss exhibited by the Veteran is attributable to his military service. However, because the pure tone thresholds do not meet the specific requirements of 38 C.F.R. § 3.385, there is no current legal disability and the claim of service connection for left ear hearing loss must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). ORDER Entitlement to service connection for left ear hearing loss is denied. REMAND The Veteran also seeks service connection for an acquired psychiatric disability, to include PTSD and depressive disorder. Further development is required with respect to this claim before it can be properly adjudicated. With respect to the Veteran's diagnosis of PTSD, the August 2012 examination on remand concluded that the one identified stressor was not sufficient to support a diagnosis of PTSD under the DSM-IV. A review of the file, however, indicates that the Veteran has identified another stressor event which has not been fully developed and was not considered by the VA examiner. Efforts should be made to corroborate the occurrence of this event, a serviceman who blew himself up with a hand grenade while on a training assignment with the Veteran, based on the information provided by the Veteran. If the event can be corroborated, an additional psychiatric opinion would be necessary. With respect to the diagnosis of depressive disorder, this claim was remanded in July 2012 with instructions to provide the Veteran with a VA examination. The remand instructions specifically stated that the examiner should provide an opinion as to the etiology of each psychiatric disability diagnosed. The August 2012 VA examination diagnosed depressive disorder but did not include an opinion by the examiner as to whether this disability was incurred in or aggravated by or otherwise related to the Veteran's active duty military service. The RO sought an addendum opinion from an independent medical examiner to address the question of etiology of the Veteran's depressive disorder. Unfortunately, the opinion provided is inadequate because it fails to consider whether any of the Veteran's described stressor events - for which corroboration is not required when the psychiatric disability at issue is not PTSD - caused or aggravated his current psychiatric disability. Instead, the opinion rests almost exclusively on the date of diagnosis, without considering the potential date of onset or whether the experiences in service were the underlying cause of the later diagnosis. As such, a new examination and opinion are necessary on remand. Accordingly, the case is REMANDED for the following action: 1. Ask the appropriate federal records custodian to provide the unit history records and/or morning reports for the Veteran's assigned unit, the H&S Company, 2nd Battalion, 27th Marine Regiment, 5th Marine Division at Camp Pendleton for the period of February and March 1969. Review the records for any discussion of an accident in training in which a serviceman was killed or severely injured by a grenade explosion. 2. Then the RO/AMC should undertake any other indicated development suggested by the development ordered above, to include arranging for an examination if the stressor event is corroborated, with an opinion specifically addressing the sufficiency of this stressor event to support a diagnosis of PTSD and a determination as to whether the Veteran has PTSD which was at least as likely as not (probability 50 percent or greater) caused or aggravated by this incident. The examiner should provide the rationale for the opinion given. 3. Afford the Veteran an appropriate VA psychiatric examination to determine whether it is at least as likely as not that any current psychiatric disability, to include depressive disorder, was at least as likely as not (probability 50 percent or greater) incurred in or aggravated by his military service, to include the stressor experiences described by the Veteran, regardless of whether they have been corroborated. The opinion on causation should be offered by the same mental health professional who examines the Veteran and has been able to discuss the stressor events in service with him. The examiner should provide the rationale for any opinions rendered. A copy of the claims file, including this remand, should be provided to the examiner for review. 4. On completion of the foregoing, the claim should be adjudicated. If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs