Citation Nr: 1324604	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  10-01 218	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

3.  Entitlement to a total rating based on unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Barone, Counsel
INTRODUCTION

The Veteran had active service from February 2003 to August 2003, and from May 2005 to September 2006.  He has additional service in the Army Reserves.

This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.

A claim for a TDIU is part of an increased rating claim when such a claim is raised by the record.  See Rice v. Shinseki, App. 447 (2009).  Here, there is evidence suggesting that the Veteran's PTSD symptomatology interferes with his ability to maintain employment.  See May 2012 private treatment report.  As the record now raises a question of whether the Veteran is unemployable due his service-connected disability, a claim for a TDIU is properly before the Board. 

The issues of entitlement to a higher initial rating for PTSD and for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The appellant does not have bilateral hearing loss disability for VA compensation purposes.


CONCLUSION OF LAW

Bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

A letter dated in October 2007 discussed the evidence necessary to support the Veteran's claim for service connection.  The Veteran was invited to submit relevant evidence.  The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence.  This letter also advised the Veteran of the manner in which VA determines disability ratings and effective dates.  Subsequent letters advised the Veteran of the status of his claim.

The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim.  

With respect VA's duty to assist, the Board notes that identified records have been associated with the claims file.  A VA examination has been carried out.  The Board finds that the examination is adequate in that the examiner reviewed the record, interviewed the Veteran, and performed an appropriate examination prior to providing his conclusions.  The report of record is thorough and consistent with contemporaneous treatment records.  The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims.  The Board is also unaware of any such outstanding evidence or information.  Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.

For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.

Analysis

Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110  (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303.  To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) 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).  

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

With specific regard to National Guard and Reserve service, service connection may be granted for disability resulting from either disease or injury incurred in, or aggravated while performing, active duty for training (ACDUTRA).  With respect to time periods of inactive duty training (INACDUTRA), service connection may only be granted for injury so incurred or aggravated.  38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. 
§ 5107(b) (West 2002). 

With specific regard to claims involving hearing loss, the Court of Appeals for Veterans Claims (CAVC) has observed that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  However, 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, 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).

On enlistment examination in November 2002, audiometric testing revealed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
LEFT
5
25
15
15
20
RIGHT
0
10
10
15
25

At that time, the Veteran denied ear trouble and hearing loss.  

On a December 2003 annual medical certificate, the Veteran did not identify hearing loss as a current medical problem.  

An April 2004 pre-deployment health assessment indicates the Veteran's report that he was in good health.  He denied current medical problems.  

The Veteran indicated that his health was excellent on pre-deployment health assessment in May 2005, and again denied current medical problems. Audiometric testing conducted at that time revealed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
LEFT
5
25
15
15
20
RIGHT
0
10
10
15
25

On post-deployment health assessment in August 2006, the Veteran indicated that his health stayed about the same during deployment.  He denied having developed ringing in his ears during deployment, and indicated that he had no current ringing in the ears.  He indicated that his health in general was very good.  He indicated that at present, he had no intent to seek VA disability benefits.  An audiogram at that time revealed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
LEFT
15
30
25
25
25
RIGHT
20
25
20
20
25

On VA examination in October 2008, the Veteran reported that since October 2006 he had begun to have difficulty understanding others while conversing.  He noted that he had been exposed from mortar rounds, small arms fire, and blasts from improvised explosive devices in service.  Puretone audiometry revealed the following:




HERTZ



500
1000
2000
3000
4000
LEFT
20
35
25
25
30
RIGHT
15
25
20
25
25

Speech recognition scores were 100 percent on the left and 96 percent on the right.  The examiner concluded that there was no pathology to render a diagnosis and indicated that the examination revealed no hearing problems.  

The Board has reviewed the record and determined that service connection for bilateral hearing loss disability is not warranted.  In that regard, while the service treatment records reflect a shift in hearing acuity during service, the puretone thresholds shown on various periodic examinations do not reflect hearing loss disability under VA regulation at any time during the appeal.  Moreover, the October 2008 VA examination also failed to demonstrate puretone thresholds or speech recognition scores demonstrating disability for VA purposes.  Rather, the Board observes that the Veteran has not had puretone thresholds at 40 or greater in any relevant frequency, or 26 or greater in three or more relevant frequencies.

As noted, VA regulations require that hearing loss be reported at a certain level before it will be considered a disability for compensation purposes.  In this case, neither the service records nor those subsequent to service demonstrates that the Veteran has ever had a hearing loss disability as defined by VA regulations.  The Board acknowledges the Veteran's report that he has experienced a decrease in hearing acuity; however, in the absence of proof of a present disability as defined by VA regulations, there can be no valid claim for service connection.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225   (1992).  Accordingly, the claim of entitlement to service connection for bilateral hearing loss disability must be denied.  

The preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49, 54   (1990).


ORDER

Entitlement to service connection for bilateral hearing loss disability is denied.


REMAND

The Veteran seeks a higher initial evaluation for PTSD, which is currently rated as 50 percent disabling.  A VA examination was most recently carried out in February 2010.  At that time, the Veteran reported that he worked full time, but that he was concerned about employment because of his difficulty concentrating.  The examiner concluded that the Veteran's symptoms fell into the category of occupational and social impairment with reduced reliability and productivity.  

Since the February 2010 examination, the Veteran has submitted more recent treatment records from Inner Circle Counseling.  In a May 2012 report, practitioners there noted that the Veteran had been significantly impaired by increases in anxiety, flashbacks, and nightmares, as well as a decline in memory.  They related that the Veteran was increasingly impaired in his ability to hold appropriate gainful employment.  They related that the Veteran had lost his job only a few days previously.  Because the May 2012 private report suggests worsening in the Veteran's PTSD symptoms, the Board concludes that a current examination is warranted.

Further development and adjudication of the Veteran's claim for increase may provide evidence in support of his claim for a TDIU.  The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue.  See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources , the claims are inextricably intertwined. 

In light of the above discussion, the Board has determined that additional development is necessary.  Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with appropriate notice of VA's duties to notify and to assist.  Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU.  Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information.

2.  Schedule the Veteran for a VA psychiatric examination to determine the severity of his service-connected PTSD.  The claims file should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report.  All indicated testing should be carried out and the results recited in the examination report.  

Following examination, interview of the Veteran, and review of the claims file, the examiner should identify the manifestations of the Veteran's PTSD and discuss the severity of those manifestations.  The examiner should discuss how the Veteran's PTSD impacts his employment and activities of daily living, and indicate whether PTSD renders the Veteran unemployable.

If any of the above inquiries cannot be addressed, the examiner should provide a complete explanation as to why they cannot be addressed.

The complete rationale for all opinions expressed should be provided in the examination report, to include reference to pertinent evidence where appropriate.  If the examiner determines that he is unable to provide the requested opinions without resort to speculation, he must provide a reasoned explanation for such conclusion, which includes appropriate references to pertinent evidence of record.

3.  Review the examination reports for compliance with the Board's directives.  Any deficiencies should be resolved prior to recertification to the Board.  

4.  The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655.

5.  Upon completion of the above development and any additional development deemed appropriate, readjudicate the issue of entitlement to a higher initial evaluation for PTSD and adjudicate the issue of entitlement to a TDIU on appeal.  All applicable laws and regulations should be considered.  If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a Supplemental Statement of the Case.  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).

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).



______________________________________________
Bethany L.  Buck
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs