Citation Nr: 1323757 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 05-24 503A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Chisholm Chisholm & Kilpatrick ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1972 to October 1975 with additional service in the National Guard from March 1975 to November 1979 and from May 1983 to September 1986. The Veteran's service in the National Guard included documented periods of active duty for training (ACDUTRA) from May 15, 1976 to May 30, 1976; May 14, 1977 to May 28, 1977; May 13, 1978 to May 7, 1978; and from May 12, 1979 to May 26, 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision, which denied service connection for PTSD, and an October 2007 rating decision, which denied service connection for a bilateral hearing loss disability and tinnitus, both of which were issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board notes that evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration. With regard to the Veteran's bilateral hearing loss disability and tinnitus claims, in April 2009, May 2010, and February 2012 the Board remanded these claims. The Appeals Management Center (AMC) continued the previous denial of the claims in an April 2012 supplemental statement of the case (SSOC). With respect to the Veteran's acquired psychiatric disorder claim, in a May 2010 decision, the Board denied the Veteran's service connection claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In April 2011, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Remand (JMR). An Order of the Court dated May 2, 2011 granted the motion, vacated the Board's May 2010 decision, and remanded the case to the Board. The Veteran's claim was again before the Board, and in a February 2012 decision, the Board denied the Veteran's claim. The Veteran again appealed the Board's decision to the Court. In December 2012, counsel for the Veteran and the Secretary of VA filed a JMR. An Order of the Court dated December 27, 2012 granted the motion, vacated the Board's February 2012 decision, and remanded the case to the Board. Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to an acquired psychiatric disorder, to include PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran's currently diagnosed bilateral hearing loss disability is related to his military service. 2. The Veteran's currently diagnosed tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The Veteran's currently diagnosed bilateral hearing loss disability was incurred in military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The Veteran's currently diagnosed tinnitus was incurred in military service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a bilateral hearing loss disability and tinnitus. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in April 2009, May 2010, and February 2012 the Board remanded these claims and ordered the agency of original jurisdiction (AOJ) to provide the Veteran with a VA audiological examination for his bilateral hearing loss disability and tinnitus and associate a copy of the examination report with his claims folder. The Veteran's claims were then to be readjudicated. Pursuant to the Board's remand instructions, the Veteran was afforded a VA audiological examination for his bilateral hearing loss and tinnitus in March 2012, and a copy of the examination report was associated with his claims folder. The Veteran's bilateral hearing loss disability and tinnitus claims were readjudicated via the April 2012 SSOC. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The VCAA describes VA's duties to notify and assist veterans 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, 3.326(a) (2012). As discussed in more detail below, sufficient evidence is of record to grant the Veteran's claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. Service connection for a bilateral hearing loss disability and tinnitus Because the outcome as to both issues involves the application of virtually similar law to identical facts, the Board will address the two issues together. Pertinent legal criteria Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). For certain chronic disorders, including sensorineural hearing loss disability, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012). For the purposes of applying the law 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. See 38 C.F.R. § 3.385 (2012). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran is claiming entitlement to service connection for a bilateral hearing loss disability and tinnitus, which he contends is due to his military service. See, e.g., the Veteran's notice of disagreement dated November 2007. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) nexus. See Hickson, supra. As to Hickson element (1), it is undisputed that the Veteran is currently diagnosed with a bilateral hearing loss disability and tinnitus, as is evidenced by the report of the March 2012 VA audiological examination. Puretone threshold during the March 2012 examination was in excess of 26 dB in the right ear at 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz and in was 40 db in the left ear at 4000 Hz. Accordingly, the Veteran met the regulation criteria for a bilateral hearing disability under 38 C.F.R. § 3.385. Hickson element (1) is, therefore, satisfied as to both claims. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran maintains that he developed a hearing loss disability and tinnitus as a result of acoustic trauma during active service in his duties as a field artillery crewman. The Veteran served on active duty from November 1972 to October 1975 with subsequent periods of service in the National Guard. His personnel records reflect that his military occupational specialty was a field artillery crewman. The Board notes that the Veteran's service treatment records during active duty are not available, and that the available treatment records during his National Guard service are negative for any history or treatment for acoustic trauma. Nonetheless, pursuant to the provisions of 38 U.S.C.A. § 1154(a), the Board finds that the circumstances of the Veteran's service, including military training as a field artillery crewman, would be consistent with exposure to loud noise in service. This is sufficient to satisfy Hickson element (2). With respect to element (3), nexus, for reasons expressed immediately below the Board finds that the medical evidence in this case shows that there exists a contributory relationship between the Veteran's in-service noise exposure and his currently diagnosed bilateral hearing loss disability and tinnitus, and that service connection is therefore warranted as to both of these claims. Specifically, the Veteran was afforded a VA audiological examination in March 2012. After examination of the Veteran and consideration of his medical history, to include in-service acoustic trauma, the VA examiner concluded that it is at least as likely as not that the Veteran's bilateral hearing loss disability and tinnitus were caused by or a result of his military service. The examiner's rationale for her conclusion was based on the absence of the Veteran's service treatment records during his period of active duty as well as her consideration of the Veteran's reported in-service noise exposure which, as explained above, the Board has found to be credible. Moreover, the examiner considered the Veteran's postservice occupational and recreational noise exposure and nevertheless concluded that the Veteran's current bilateral hearing loss disability and tinnitus are related to his military service, specifically the acoustic trauma. The March 2012 VA examination report appears to have been based upon a thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history and medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative 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"]. The Board adds that another VA examiner similarly concluded a report dated July 2010 that it is at least as likely as not that the Veteran's hearing loss and tinnitus had its clinical onset due to noise exposure during his period of active service. Pertinently, the Board notes that there is no medical evidence which demonstrates the Veteran's bilateral hearing loss disability and tinnitus are not related to in-service noise exposure. The United States Court of Appeals for Veterans Claims (Court) has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, the competent and probative evidence of record indicates the Veteran's bilateral hearing loss disability and tinnitus are related to his military service. Hickson element (3), nexus, has accordingly been satisfied as to both claims. In summary, for reasons and bases expressed above, the Board concludes that service connection for a bilateral hearing loss disability and tinnitus are warranted. The benefits sought on appeal are granted. ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. REMAND Service connection for an acquired psychiatric disorder As discussed in the Introduction, in a February 2012 decision, the Board denied the Veteran's acquired psychiatric disorder claim. The Veteran subsequently appealed the Board's decision to the Court, and in December 2012, counsel for the Veteran and the Secretary of VA filed a JMR. An Order of the Court dated December 27, 2012 granted the motion, vacated the Board's February 2012 decision, and remanded the case to the Board. The Board observes that the December 2012 JMR raised concern with an April 2005 VA mental health evaluation wherein the Veteran was diagnosed with PTSD due to childhood stressors as well as his military experiences. The clinician noted that the Veteran experienced "symptoms of PTSD throughout his entire life," and proceeded to opine that entering service and experiencing additional military stressors heightened the Veteran's symptoms and contributed to the development of chronic PTSD. VA regulations provide, in pertinent part, that a veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing by clear and unmistakable evidence "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Wagner, supra. The Board notes that the Veteran submitted a private psychological evaluation dated April 2013 by J.P., Ph.D. Dr. J.P. noted and accepted the Veteran's claimed in-service stressors as well as his report of childhood stressors. He thereafter performed a psychological evaluation and diagnosed the Veteran, in part, with PTSD and major depressive disorder. After examination of the Veteran and consideration of his medical history, Dr. J.P. concluded that there is "clear evidence that [the Veteran] met criteria for the diagnosis of a [PTSD] prior to his enlistment in the military, but the subsequent traumas while on active duty amplified his symptoms and led to serious negative consequences." He also reported that "[t]here is no question that [the Veteran's] childhood traumas were exacerbated by his time in the military service." He finally stated that "it is at least as likely as not that [the Veteran's] PTSD and Major Depression were aggravated due to his military service." Crucially, however, Dr. J.P. did not state whether there is clear and unmistakable evidence that the acquired psychiatric disorder, to include PTSD and depression, was not aggravated by service beyond its natural progression. 38 C.F.R. § 3.306. Moreover, there is no other opinion of record indicating such. In light of the foregoing, the Board finds that an opinion must be obtained which addresses whether there is clear and unmistakable evidence that the Veteran's acquired psychiatric disorder preexisted military service and, if it did, whether there is clear and unmistakable evidence that the acquired psychiatric disorder was not aggravated to a permanent degree by service beyond its natural progression. See 38 U.S.C.A. §§ 1111, 1153 (West 2002), 1132; 38 C.F.R. §§ 3.304(b), 3.306 (2012); Wagner, supra; VAOPGCPREC 3-2003. Accordingly, a remand for such opinion is required. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his acquired psychiatric disorder(s). The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must provide an opinion as to the following: a. Whether there is clear and unmistakable evidence that the Veteran had an acquired psychiatric disorder, to include PTSD and/or depression, prior to his entry onto active duty. In rendering this opinion, the examiner should cite to supporting evidence in the claims folder. b. If the VA examiner determines that the Veteran's current acquired psychiatric disorder pre-existed his military service, provide an opinion as to whether there is clear and unmistakable evidence that it was NOT aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disability. In rendering this opinion, the examiner should cite to supporting evidence in the claims folder. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The term "clear and unmistakable" means undebatable. The examiner should indicate in his/her report that the claims file was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's acquired psychiatric disorder claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his attorney. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs