Citation Nr: 1325831	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-12 533	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Anthony M. Flamini, Counsel




INTRODUCTION

The Veteran served on active duty from March 1970 to November 1971.

These matters come properly before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran's claim on appeal was initially characterized as a claim of service connection for PTSD.  However, while on appeal, the United States Court of Appeals for Veterans Claims addressed a case involving the scope of filed claims finding that a claim is not limited to the diagnosis identified by the Veteran.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that [VA] obtains in support of the claim.  The Board therefore finds that the Veteran's claim is not limited solely to PTSD.  Instead, the claim is properly characterized broadly as a claim of service connection for an acquired psychiatric disorder, to include PTSD.

The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

There is competent clinical evidence of record that the Veteran's bilateral hearing loss disability is causally related to service.





CONCLUSION OF LAW

Bilateral hearing loss disability was incurred in active service.  38 U.S.C.A. §§ 1110, 1154, 5107(West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  

Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence, or in certain circumstance lay evidence, of a nexus between the current disability and the in-service disease or injury.  See Pond v. West, 12 Vet. App. 341, 346 (1999).  

Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hearing loss disability, as an organic disease of the nervous system, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012).  

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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the 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).

The Board has reviewed all of the evidence in the claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.

Here, the Veteran avers that he has bilateral hearing loss disability due to his active service, to include exposure to combat noise while serving in Vietnam.  The first element of service connection is medical evidence of a current disability.  The evidence of record includes an October 2009 VA audiological examination report.  The evaluation revealed that pure tone air thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
 20
25
25
40
LEFT
20
20
20
30
35

The word recognition score was 88 percent for the right ear and 88 percent for the left ear using the Maryland CNC word list test.  

The evidence of record also includes a March 2012 private audiological examination report.  The evaluation revealed that pure tone air thresholds, in decibels, were as follows:




HERTZ



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

The word recognition score was 92 percent for the right ear and 88 percent for the left ear using the Maryland CNC word list test.  As such, the Board notes that the Veteran has current bilateral hearing loss disability for VA purposes.  38 C.F.R. § 3.385.

The second criterion for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease.  The Veteran's DD Form 214 reflects that the Veteran received the 
Purple Heart as well as the Bronze Star Medal with a V device, and that he was stationed in Vietnam.  His DD Form 214 further reflects that his military occupational specialty (MOS) was combat medic.  Moreover, in a November 2009 rating decision, the RO conceded that he was exposed to in-service acoustic trauma and granted him entitlement to service connection for tinnitus based on that finding.  Based on the forgoing, exposure to acoustic trauma in service is conceded as consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a) (West 2002).  

The third criterion for service connection is medical evidence, or in certain circumstance lay evidence, of a nexus between the current disability and the in-service disease or injury.  

There were no complaints or clinical findings as to hearing loss on examination for entrance to service in February 1970, including on audiometric testing.  On his November 1971 Report of Medical History at separation, the Veteran reported that he suffered from hearing loss as a result of exposure to artillery noise.  Audiometric examination at that time did not reveal hearing loss.

The evidence of record includes three clinical opinions regarding the etiology of the Veteran's hearing loss disability.  The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.  As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator.  Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993).  There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule."  See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993).

The Veteran was afforded a VA audiological examination in October 2009, at which time he was diagnosed as having normal-to-mild bilateral sensorineural hearing loss.  However, the examiner opined that it was less likely than not that the Veteran's military noise exposure contributed to the onset of his hearing loss.  The examiner explained that this opinion was based on the fact that his separation evaluation documented his hearing as normal for both ears.  As such, the examiner concluded that the Veteran's current hearing loss had to begin after his discharge from service, and cited a 2005 Institute Of Medicine report which found that noise-induced hearing loss occurred immediately, with no scientific support for delayed onset weeks, months, or years after the exposure event.  

However, in a March 2010 VA ambulatory care note, the Veteran's VA physician indicated that, following a review of the Veteran's service records, he concluded that it was as likely as not that the Veteran's conceded exposure to combat noise while in service caused his current hearing disability.

In a March 2012 private audiological report, the Veteran's private audiologist also opined that it was at least as likely as not that the Veteran's current bilateral hearing loss began secondary to military noise exposure.  

The Board finds that the evidence is in equipoise with regard to the Veteran's claim.  Both the October 2009 VA examiner and the treating VA physician reviewed the Veteran's service treatment records, while the private audiologist was given a detailed oral history from the Veteran which was consistent with the places, types, and circumstances of such Veteran's service as shown by his service records.  See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005).  All three examiners provided rationales for their opinions.  Moreover, the Board notes that the Veteran reported experiencing hearing loss, which he attributed to artillery noise, at the time of his separation from service in November 2011.  When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue).  As such, the Board will grant service connection for bilateral hearing loss disability.


ORDER

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




REMAND

The Veteran also seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD, which he contends was caused by traumatic, in-service combat experiences.  

In correspondence dated in February 2009, the Veteran's treating VA physician diagnosed him as having PTSD, and indicated that the Veteran exhibited symptoms of hypervigilance and avoidance which exceed the criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM IV).  The physician further opined that his nightmares, flashbacks, and intrusive thoughts have increased his inability to perform socially.  

However, when afforded a VA PTSD examination in September 2009, the examiner indicated that there was no current treatment for a mental disorder and concluded that the Veteran did not meet the DSM IV criteria for PTSD.  Although the examiner conceded that the Veteran reported some mild symptoms consistent with PTSD, such as hypervigilance and distrust of others, he appeared to exhibit some grief reactions associated with his son's unexpected death.  The examiner opined that the Veteran's psychosocial functioning was good overall.  Moreover, the examiner did not offer any diagnosis of Axis I, and listed "Bereavement; Phase of life issues" under Axis IV.  

As discussed above, the Veteran's DD Form 214 reflects that he received the Purple Heart as well as the Bronze Star Medal with a V device, and that he served as a combat medic while stationed in Vietnam.  Moreover, the Board notes that, effective July 13, 2010, subsequent to the September 2009 VA PTSD examination report, the Code of Federal Regulations governing claims for service connection for PTSD was amended.  See 75 Fed. Reg. 39843 (July 13, 2010).  Under the new amendment, if a Veteran's claimed stressor relates to fear of hostile military or terrorist activity, then lay testimony may establish the occurrence of the claimed in-service stressor, absent clear and convincing evidence to the contrary, if 1) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the symptoms are related to the claimed stressor; and 2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service.  75 Fed. Reg. 39843 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)).

As such, the Board finds that the Veteran must be afforded a new VA psychiatric examination, both to specifically address the diagnosis of PTSD rendered by a VA physician in February 2009, as well as to diagnose the Veteran's psychiatric symptomatology in light of the amendments to the Code of Federal Regulations governing claims for service connection for PTSD.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the case is REMANDED for the following action:

1. Obtain all records of the Veteran's VA treatment for any psychiatric disability dated from October 2007 to the present, including at the Orlando Vet Center, and associate them with the claims file.

2.  After associating any outstanding records with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any found psychiatric disorder, to include PTSD.  Prior to the examination, the claims file must be made available to the psychiatrist for review of the case.  A notation to the effect that this record review took place should be included in the report of the psychiatrist.  The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms.  All indicated tests and studies, including psychological testing, if necessary, are to be performed and the examiner should review the results of any testing prior to completing the report. 

Any diagnosis of PTSD must be in accordance with the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV).  The examiner should specifically address whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of 50 percent), or unlikely (i.e., a probability of less than 50 percent) that the PTSD is a result of the Veteran's in-service stressor(s).  If the Veteran does not meet the criteria for a diagnosis of PTSD due to an in-service stressor, the examiner should explain why.  

The examiner should also address whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of 50 percent), or unlikely (i.e., a probability of less than 50 percent) that any diagnosed acquired psychiatric disorder is related to service.

A complete rationale for any opinion expressed, to include citation to specific documents in the claims file and supporting clinical findings, must be included in the examination report.  The examiner is asked to specifically comment upon the February 2009 correspondence in which the Veteran's treating VA physician indicated that the Veteran exhibited symptoms of hypervigilance and avoidance which exceeded the PTSD criteria of the DSM-IV.  If an opinion cannot be expressed without resorting to speculation, the examiner must so state and further state why speculation is required.

3.  After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case.  It 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 thereto.  The case should then be returned to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter 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).




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs