Citation Nr: 1325270 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-08 512A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1979. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a April 2009 rating decision of the Togus, Maine, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing is associated with the claims file. Subsequent to the hearing, he submitted additional evidence with a waiver of RO consideration. See 38 C.F.R. § 20.1304. This appeal was processed in part by using the Virtual VA paperless claims processing system. The documents contained in this system, including the hearing transcript, were reviewed in conjunction with this appeal. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The competent and credible evidence shows that the Veteran's depression is related to his military service. 2. The Veteran has likely had left ear tinnitus since military service. 3. The Veteran's hearing loss is not related to his military service. CONCLUSIONS OF LAW 1. The Veteran has depression that is the result of disease or injury incurred during active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The Veteran has tinnitus that is the result of disease or injury incurred during active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 3. The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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 February 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing the claims. 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. VA also has a duty to assist the Veteran in the development of his claims. 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. 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, including testimony provided at a February 2013 hearing before the undersigned. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed 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 claims. 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 claims on appeal. 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). Analysis To prevail on a claim of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In making all determinations, the Board must fully consider all lay assertions of record. A layperson is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Depression The Veteran has claimed service connection for depression due to his service as a military police officer. Throughout the pendency of this appeal, the Veteran has consistently been diagnosed with depression, including Major Depressive Disorder. See generally, private treatment records. Depression was not noted in service; however, the Veteran's service records, including his DD-214, confirm that the Veteran's military occupational specialty (MOS) was military police. In his lay statements and testimony, the Veteran has elaborated on the circumstances of that service. Specifically, he has recounted incidents of threats, confrontations, assaults, breaking up fights, and one instance wherein he found a service member dead of an overdose. The Veteran is competent to provide lay evidence of these incidents and the Board finds his accounts generally credible. Moreover, these reports are consistent with the circumstances of military police service. Finally, the Veteran has submitted a private medical opinion dated in May 2013 by a psychiatrist. This psychiatrist, after reviewing the records of the Veteran's primary care physician, opined that the Veteran's "depression is at least as likely as not related to long-term exposure to stress as a military policeman and to chronic pain related to a beating with a chair that he sustained in service." The Board is unable to verify the Veteran's specific reports of being beaten with a chair; however, the general circumstances of his service have been found sufficient to support a causal nexus between the Veteran service and his current depression. Furthermore, the record does not contain contradictory evidence sufficient to refute this medical opinion. Therefore, service connection for depression is granted. Tinnitus The Veteran claims an in-service onset of left ear tinnitus, followed by a more recent increase in symptoms, including right ear tinnitus. The record contains a diagnosis of tinnitus. Moreover, the symptoms of tinnitus are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Tinnitus was not noted in service, but the Veteran has provided lay evidence of an in-service onset of tinnitus. In addition to being competent to provide lay evidence regarding his current tinnitus, the Veteran is also competent to provide lay evidence concerning the onset and continuity of these symptoms, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, the Board finds the Veteran's statements regarding an in-service onset of tinnitus to be credible. In June 2009, a VA medical examiner opined that the Veteran's tinnitus was less likely as not related to his military service, noting that there was no subjective or objective way to prove or disprove the presence or absence of tinnitus and instead relying on the lack of documented tinnitus in service and the Veteran's negative reply to the question, "Have you ever had or have you now ear, nose, or throat trouble?" The Board finds that the probative weight of this opinion, based on the strength of this rationale, is insufficient to outweigh the lay evidence supporting a finding of continuous tinnitus symptoms dating back to service. Thus, the evidence favors a finding of continuity of symptomatology dating back to military service. Accordingly, service connection for tinnitus is warranted. Hearing Loss As a chronic condition, sensorineural hearing loss (organic disease of the nervous system) would be entitled to presumptive service connection if the disease became manifest to a degree of ten percent or more within one year of separation. 38 C.F.R. §§ 3.307, 3.309. The first diagnosis of hearing loss came in February 2003, more than 20 years after service. The record does not contain any earlier records of treatment or evaluation for hearing loss. Therefore, there is no indication that the Veteran's hearing loss was manifested to a degree of ten percent or more within one year after discharge. Service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(3). Although the Veteran is not entitled to service connection on a presumptive basis, he is not precluded from establishing service connection for bilateral hearing loss with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). As noted above, direct service connection requires competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See Davidson, 581 F.3d 1313. For 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, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. During the pendency of this appeal, the Veteran has been shown to have sufficient left ear hearing loss to establish impaired hearing for VA purposes. See e.g., June 2009 VA Audiology Examination, June 2012 Private Audiology Record. Conversely, audiograms of his right ear do not show hearing loss sufficient for VA purposes. See Hensley v. Brown, 5 Vet. App. 155 (1993)(noting that the threshold for normal hearing is from 0 to 20 decibels); 38 C.F.R. § 3.385. Thus, the current disability requirement is met with regard to the left ear only. Hearing loss was not noted in service. Indeed, the Veteran's audiometer results at the time of his July 1979 separation examination showed clinically normal hearing. No ear abnormality was noted. In the accompanying Report of Medical History, the Veteran denied ear, nose, or throat trouble, or hearing loss. Instead, the Veteran claims service connection for hearing loss due to in-service noise exposure, including exposure to the muzzle blast of an M16 at close range. See e.g., June 2012 Private Audiologist Record, February 2013 Hearing Testimony. The Board concedes this type of noise exposure in service is consistent with the circumstances of the Veteran's service. With regard to the third and final requirement for direct service connection of a nexus between the in-service noise exposure and the Veteran's current hearing loss, VA scheduled the Veteran for a June 2009 audiology examination. This examiner opined that the Veteran's hearing was less likely as not related to his military service, noting the Veteran's normal hearing at the time of his July 1979 separation examination audiogram, the lack of significant shift in pure tone threshold levels between entrance and separation, and that hearing loss related to noise exposure is not known to be progressive after the fact. See also October 2012 Addendum Opinion. The Veteran has submitted an April 2009 letter from his private physician which universally finds all of the Veteran's claimed conditions, including hearing loss, to be related to his service without any accompanying rationale. The Board finds this letter to be of little probative value. The Board has also considered the Veteran's lay assertions that his hearing loss is related to his noise exposure during military service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, given the passage of time, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The Board has also considered whether continuity of symptomatology has been shown. In this case, the medical evidence of record notes a reported onset of left ear hearing loss symptoms more than 20 years after service. See September 2003 Private Neurologist Records (noting an "abrupt" onset of hearing loss in January of that year); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997)(observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Furthermore, early records, including an April 2001 record of treatment for left ear pain, specifically deny hearing loss. The Board finds the history provided at the time of treatment to be more probative than the Veteran's statements made in conjunction with his service connection claim. Thus, the weight of the evidence is against a finding of continuity of symptomatology. For the reasons stated, the Board finds that service connection for hearing loss is not warranted, and this claim is denied. ORDER Service connection for depression is granted. Service connection for tinnitus is granted. Service connection for hearing loss is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs