Citation Nr: 1325677 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-13 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for hearing loss, tinnitus, and PTSD. The Veteran cancelled a Board hearing scheduled in July 2013. No additional hearing requests have been received. See 38 C.F.R § 20.702(e) (2012). The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDINGS OF FACT 1. Bilateral hearing loss is not etiologically related to service, to include noise exposure in service. 2. Tinnitus is not etiologically related to service, to include noise exposure in service. 3. PTSD has been diagnosed and attributed to a credible in-service stressor. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). On the issue of service connection for PTSD, the Board is granting in full the benefit sought on appeal. Assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Prior to the initial adjudication of the Veteran's hearing loss and tinnitus claims, a letter dated in March 2009 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was also notified of the criteria for establishing an effective date and disability rating. See Dingess. The Veteran's service treatment records, VA treatment records, and lay statements have been associated with the claims file. He identified additional treatment records from the Savannah Vet Center which have not been obtained. However, in various written submissions, the Veteran stated that those records addressed treatment for his PTSD. His hearing loss and tinnitus were treated through the Beaufort Clinic and Charleston VA Medical Center, and those records are contained in the claims file. The Veteran was also afforded a VA examination for hearing loss and tinnitus. 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 VA examination obtained in this case is adequate as it is predicated on a review of the claims file; contains a description of the history of the disabilities at issue; documents and considers the relevant medical facts and principles; and provides an opinion regarding the etiology of the Veteran's hearing loss and tinnitus. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may 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) (2012). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). For a showing of 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). A. Hearing Loss and Tinnitus Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or 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 (2012). Section 3.385 of Title 38, Code of Federal Regulations does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When audiometric test results at the veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 157. Prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left in each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. The Veteran's records reflect that he performed aircraft maintenance during service. During the Veteran's September 1966 enlistment examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -5 (5) -5 (5) - -5 (0) LEFT -5 (10) -5 (5) -5 (5) - -5 (0) During the Veteran's November 1968 separation examination, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 0 5 5 5 LEFT 25 0 5 5 10 A VA examination was conducted in June 2007. The Veteran reported a history of military noise exposure from working as an aircraft crew chief on the flight line. He also had two years of occupational noise exposure from farming tractors. Recreational noise exposure included attending car races and using lawn equipment. The Veteran also reported constant bilateral tinnitus for a period of 2 years. On examination, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 30 35 LEFT 10 20 15 20 30 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. The examiner noted bilateral hearing loss, not disabling per 38 C.F.R. § 3.385, and subjective tinnitus, which was as likely as not a symptom of hearing loss. She stated that entrance and separation examinations noted hearing within normal limits bilaterally. There were no complaints of hearing loss or tinnitus in service or until many years after his discharge. The examiner stated that current complaints were not related to service, and cited to an Institute of Medicine study which indicated that there was no scientific basis for delayed or late onset noise-induced hearing loss. VA records dated May 2009 show the Veteran reported ringing in his ears. A July 2010 note shows a history of noise exposure consistent with that reported during the June 2007 examination. The Veteran reported a 2 to 3 year history of tinnitus. The treating physician noted that hearing thresholds were within normal limits up to 3 kHz and mild sensorineural hearing loss at 4 kHz. Speech recognition was 88 percent on the right side and 80 percent on the left side. Service connection for hearing loss and tinnitus are not warranted. First, the Veteran performed aircraft maintenance during service. Therefore, military noise exposure is conceded. However, while the Veteran is currently diagnosed with hearing loss and tinnitus, the overall weight of the evidence is against a finding that they were incurred in or otherwise related to service. The VA examiner in this case concluded that hearing loss and tinnitus were not related to service. This opinion was based on a review of the claims file, a history provided by the Veteran, and a physical examination. The opinion had a supporting explanation based on the available medical literature. There is no competent medical opinion to refute this conclusion or to otherwise suggest that hearing loss or tinnitus were related to service. The examiner in this case stated that hearing levels were normal at separation. The Veteran's separation examination reflects a 25 decibel threshold in the left ear at 500 Hz, which is some indication of hearing loss. See Hensley, supra. However, because subsequent testing revealed normal thresholds at 500 Hz, the VA examiner's opinion remains valid. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (there is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). The U.S. Court of Appeals for Veterans Claims (Court) stated that examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo at 105. The Veteran's own statements have also been considered. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of hearing loss and tinnitus falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran has not claimed that he has experienced hearing loss since his separation from service, and his records reflect complaints of tinnitus only dating back to 2005. Therefore, service connection based on a theory of continuity of symptomatology is not warranted. The preponderance of the evidence is against finding that the Veteran has bilateral hearing loss or tinnitus etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claims. B. PTSD Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV)); (2) a link, established by medical evidence, between current PTSD symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2012). The Veteran is claiming PTSD based on a personal assault in service. Specifically, he stated that he was raped in service by 3 men after having his living quarters temporarily relocated to a new building. In a January 2009 letter, the Veteran's treating psychologist, Dr. L.C.H., diagnosed PTSD based on a formal clinical assessment and objective testing. Therefore, the first criterion has been met. In addition, Dr. L.C.H. attributed the Veteran's PTSD to the sexual assault he reportedly experienced during service. Therefore, the second criterion has been met. Finally, the opinion itself supports the Veteran's contentions regarding being assaulted in service. A medical opinion may be used to corroborate a personal assault stressor. See 38 C.F.R. § 3.304(f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for credible supporting evidence" in personal assault cases). Therefore, the third criterion has also been met. As all three elements have been satisfied, service connection for PTSD is warranted. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs