Citation Nr: 1323088 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-43 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an auditory processing disorder. 2. Entitlement to a rating in excess of 30 percent for asthma prior to April 8, 2011. 3. Entitlement to a rating in excess of 10 percent for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to August 2005. This appeal comes before the Board of Veterans' Appeals (Board) from November 2008 and October 2009 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The November 2008 decision denied service connection for an auditory processing disorder. The October 2009 decision denied a rating in excess of 30 percent for asthma and a rating in excess of 10 percent for headaches. In a July 2012 decision, the RO awarded a 60 percent rating for asthma effective April 8, 2011. The Veteran has indicated his satisfaction with the 60 percent rating but has maintained his appeal for an increased rating prior to April 8, 2011. See November 2012 statement. Thus, the Board has characterized the issues as shown on the first page. The issues of entitlement to increased ratings are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The issues of entitlement to service connection for sleep apnea and increased ratings for eczema, allergic rhinitis, a thoracolumbar spine disability, and a right knee disability have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran does not have an auditory processing disorder. CONCLUSION OF LAW The criteria for service connection of an auditory processing disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. A May 2005 medical record indicates that a "SCAN-A" revealed results which were "within normal limits." The record indicates that although "extreme problems understanding in background noise [was] noted," "no auditory processing test evident." The record reports that auditory processing was not a factor contributing to any auditory communication disorder experienced by the Veteran. An October 2005 treatment record reveals that the Veteran's hearing was "within normal limits bilaterally." The record notes that the Veteran had borderline results in two subsets of the SCAN-A test, which the audiologist believed showed probable central auditory processing dysfunction. The audiologist determined that further evaluation was needed. A subsequent October 2005 treatment record reveals that the Veteran underwent additional diagnostic central auditory processing evaluation. The record indicates that the "responses/scores were within normal limits for all tests, except for SSW." The audiologist found the "scores on SSW indicate a possible auditory decoding deficit." A January 2008 audiogram reflects findings of normal peripheral hearing sensitivity. The record notes that the Veteran had a prior medical history of auditory processing disorder and indicates that "OTE trial" was recommended. A March 2008 VA examination record reveals normal results on audiometric testing. A March 2009 VA examination record reflects the Veteran's history of difficulty hearing in quiet situations and difficulty understanding speech in the presence of background noise. The Veteran explained that he first noticed that he had a "hearing problem" in 1989, when he realized he had trouble hearing in meetings. The Veteran reported that audiometric testing consistently revealed normal hearing. He added that he was told he had an auditory processing disorder in 2005, prior to separation from service. The record indicates that the Veteran was examined diagnostically for auditory processing disorder, and the claims file was reviewed. The examiner noted that auditory processing disorder (APD) is a central hearing loss that occurs when the brain has difficulty making sense of complex sounds, like speech in the presence of background noise. The examiner explained that a "traditional" diagnostic hearing test will typically yield normal results in the presence of APD and that APD is diagnosed based on poor performance across multiple, "not just one or two," diagnostic auditory processing subtests. The examiner noted that the Veteran completed a screening for APD in the form of a SCAN-A test battery in May 2005. The examiner explained that the SCAN-A is a screening for - not a diagnostic test of - auditory processing function. The examiner added that a positive screening result is not considered a valid method of diagnosing auditory processing disorder. The examiner noted that the SCAN-A test revealed that the Veteran was "overall: within normal limits," and the examiner found the October 2005 finding of "probable" APD based on the SCAN-A test was "clearly contradictory to the other information." The examiner noted that a subsequent October 2005 record reflected a finding of "possible" APD based on additional diagnostic testing. The examiner explained that the Veteran was not actually diagnosed with APD based on the results, however. Furthermore, the examiner determined that such a diagnosis was not warranted because APD is diagnosed based on poor performance across multiple diagnostic subtests and not just poor performance on one or two subtests. In sum, the examiner found the claims file did not indicate that the Veteran had ever been diagnosed with APD. Instead, the examiner found the previous diagnostic testing indicated auditory processing within normal limits. The examiner also found that current audiological evaluation revealed auditory processing within normal limits as tested by a protocol for APD. The examiner explained that despite the functional hearing difficulties reported by the Veteran, the Veteran was able to consistently hear speech in the presence of noise, discriminate between sounds with different timing and pitches, and understand different complex information presented to both ears at the same time. The examiner found it unlikely that the Veteran should have significant difficulty hearing given his performance on the tests was within normal limits. Finally, the examiner explained that APD was not thought to be related to noise exposure but rather "from disease, damage, or degradation of the central auditory system in adults or delayed or disordered auditory system development in children." The examiner added that APD is normally considered to be a developmental difference found in children and not a disorder that has an adult-onset presentation, except in such populations as patients with traumatic brain injury or acoustic neuroma. The examiner noted that the Veteran reported "good" hearing at entrance and that he had not reported any underlying adult-onset medical condition which would make him have an onset of APD. In conclusion, the examiner found that the Veteran did not have APD. Service connection is not warranted for an auditory processing disorder. The Board has carefully reviewed the evidence of record but finds no probative evidence of an auditory processing disorder at any point during the pendency of the claim. The medical record does not reveal any medical findings or diagnoses of an auditory processing disorder during the claim period, and the Veteran has not alleged that there are outstanding treatment records reflecting such a diagnosis. Moreover, a VA examiner has determined that the Veteran does not have an auditory processing disorder. The Board finds the VA examiner's determination is highly probative as it is supported by detailed explanation for why such a diagnosis is not warranted. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the factually accurate, fully articulated, sound reasoning for the conclusion determines the probative value of a medical opinion). The Board acknowledges that the record includes findings of speech discrimination problem. See, e.g., April 2010 VA treatment record. The underlying cause of the "speech discrimination problem" is not identified, however, and there is no medical evidence that it is due to an auditory processing disorder. Thus, the finding of a "speech discrimination problem" is not probative evidence of a diagnosis of an auditory processing disorder. The Board further acknowledges that the Veteran has reported that he was diagnosed with an auditory processing disorder by a VA examiner. See September 2009 VA treatment record. Although the Veteran is competent to report his diagnostic history, this history is not credible, and thus not probative, as it is contradicted by the VA examination record. In sum, there is no objective evidence of record showing that the Veteran currently has an auditory processing disorder. See Mclain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the Veteran contends that he was diagnosed during service and that he continues to exhibit the same symptoms. The service medical evidence does not corroborate the history of a diagnosis, however. The records do not contain a definitive diagnosis of auditory processing disorder - they only reflect findings of possible or probable auditory processing disorder - and a VA examiner has determined that the Veteran was never diagnosed with, and did not warrant a diagnosis of, an auditory processing disorder. The Board finds the VA examiner's determination is highly probative as it is supported by detailed explanation for why such a diagnosis was not made and was not warranted and is based on findings consistent with the medical records. See Nieves-Rodriguez, 22 Vet. App. at 304. Moreover, even assuming the Veteran did have an auditory processing disorder during service, the record does not include any medical evidence that the in-service auditory processing disorder was a chronic condition which postdated the Veteran's separation from military service, and auditory processing disorders are not considered to be "chronic diseases" listed per 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply to this appeal. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves the existence of a disability. Davidson, 581 F.3d at 1316. However, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead rendering an opinion as to whether he has an auditory processing disorder. The existence of an auditory processing disorder is not a disorder capable of lay diagnosis. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Rather, such a diagnosis requires medical evaluation. Thus, the Board concludes that the Veteran's statements regarding the existence of a current disability do not constitute competent evidence on which the Board can make a service connection determination. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as there is no competent evidence of a current disability, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. Accordingly, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant 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). The 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in May 2008 with regard to the claim for service connection for an auditory processing disorder. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the AOJ in November 2008. The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file. The Board acknowledges that there appear to be outstanding records associated with treatment through the 82nd Medical Group. The Veteran has not alleged that he has received any treatment for the reported auditory processing disorder from a non-VA medical professional, however, and the available records do not suggest any such treatment. As such, the Board finds the outstanding records are not relevant and their absence does not result in any prejudice to the Veteran. A VA examination with opinion was obtained with respect to the issue on appeal was obtained in March 2009. 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA opinion obtained in this case is adequate, as it is predicated on a full reading of the service and post-service medical records in the Veteran's claims file. It considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. The Veteran has alleged that the March 2009 VA examination was not adequate because it was not sufficiently "in depth." The Board finds the March 2009 VA examination record indicates that all necessary testing was conducted, and the VA examiner provided a thorough opinion for the conclusions reached. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). ORDER Service connection for an auditory processing disorder is denied. REMAND The Veteran contends that he has taken systemic corticosteroids for his asthma approximately three times a year throughout the claims period. Prior to April 8, 2011, the medical evidence of record only reflects the prescription of corticosteroids in October 2008 and July 2009. However, the Veteran has submitted a Tricare medication profile which indicates that he also filled a prescription for a corticosteroid in March 2009. Based on the discrepancy, and the non-chronological nature of the records received from the Veteran, the Board finds VA must obtain an updated prescription report and ensure that all relevant records have been associated with the file. Furthermore, the Board notes that the record includes a July 2009 Tricare Pulmonary Function Test (PFT) report which is barely legible. As this record is relevant, a legible copy must be requested. Additionally, with respect to the claim of entitlement to an increased rating for headaches, a new examination should be conducted based on the Veteran's history of increased symptoms since the September 2009 VA examination and the absence of relevant treatment records dated after October 2009. See November 2012 statement. See also Littke v. Derwinski, 1 Vet. App. 90 (1990). Accordingly, the case is REMANDED for the following action: 1. Ensure that all outstanding, relevant VA treatment records are associated with the file, notably those dated from March 2012. The record suggests the Veteran has received his VA treatment through the Broker, Oklahoma, VA Health Care System. If the records are not available, the Veteran should be so informed. 2. Undertake appropriate development to obtain all relevant Tricare medical records dated from July 2008, forward, to include a legible copy of the July 2009 PFT report if possible and an updated "Medication Profile" reflecting the prescriptions filled by the Veteran dated from September 3, 2009. The record suggests the Veteran has received his Tricare treatment through the 82nd Medical Group. If unsuccessful, so inform the Veteran. 3. Undertake appropriate development to obtain any outstanding, relevant private treatment records dated from July 2008 forward, notably those associated with treatment through the W.C.C. and D.J., M.D. If unsuccessful, so inform the Veteran. 4. Afford the Veteran a VA examination to determine the level of impairment due to migraine headaches. The medical professional must review all relevant evidence, including those associated with non-VA treatment or contained on Virtual VA. The examiner must comment on the frequency of the headaches, to include the frequency of any "characteristic prostrating attacks" since July 2008, and the degree of occupational impairment caused by the headaches, to include whether it is productive of severe economic inadaptability. 5. Thereafter, readjudicate the appellant's claims. If the benefits sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs