Citation Nr: 1331156	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  10-00 846	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

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


REPRESENTATION

Veteran represented by:	Daniel G. Krasnegor, Esq.


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1988 to November 1988 and June 1989 to November 1992.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky (August 2008) and in Indianapolis, Indiana (March 2009 and May 2009).  During the course of the appeal, the Veteran's claims file was permanently transferred to the RO in Indianapolis, Indiana which now has jurisdiction over the claims on appeal.

In a January 2010 substantive appeal, via a VA Form 9, the Veteran requested a personal hearing before the Board at the RO.  In a September 2011 statement, the Veteran noted his desire to withdraw the hearing request.  The Board finds there is no hearing request pending at this time.  38 C.F.R. § 20.702(e) (2012).    

The issue of entitlement to service connection for an acquired psychiatric disorder, including PTSD, was previously characterized as entitlement to service connection for just "PTSD".  The United States Court of Appeals for Veterans Claims (Court) has held that such claims encompass claims of entitlement to service connection for all psychiatric disabilities.  Clemmons v. Shinseki, 23 Vet. App. 1, 5 (2009).   

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.  

The issue of service connection for an acquired psychiatric disorder, including PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO.





FINDINGS OF FACT

1.  All relevant evidence necessary to decide the Veteran's appeal has been obtained.

2.  The Veteran does not have a currently diagnosed bilateral hearing loss disability for VA purposes.  

3.  Bilateral hearing loss did not manifest to a compensable degree within one year of separation from active service.

4.  The Veteran was exposed to loud noise (acoustic trauma) while in service.  

5.  The Veteran's tinnitus is related to exposure to noise in service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 

2.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service.  It may be granting by affirmatively showing inception or aggravation during service.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

Service connection can also be established through application of statutory presumptions.  Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309.  Other organic diseases of the nervous system are listed as a "chronic disease" and includes sensorineural hearing loss.  See M21-1MR, Part III.iv.4.B.12.a; see also Cromley v. Brown, 7 Vet. App. 376, 378 (1995).

Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also 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).

Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a)(1) (2012).

The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War.  38 C.F.R. § 3.317(e)(1).  The "Southwest Asia theater of operations" refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(e)(2).  The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law.  38 U.S.C.A. § 101(33) (West 2002); 38 C.F.R. § 3.3(i) (2012).  

In this case, the Veteran's service personnel records document his service in Saudi Arabia from January 8, 1991 to May 13, 1991.  Nevertheless, the evidence of record does not show, as discussed below, objective indications of bilateral hearing loss that became manifest either during service in Saudi Arabia or to a degree of 10 percent since separation from service.  As a result, the Board finds that service connection on a presumptive basis for a Persian Gulf Veteran does not apply in this case. 

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 on appeal.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Service Connection for Bilateral Hearing Loss

In October 2008 and February 2009 statements, the Veteran reported he was constantly exposed to loud noises while in service as an Armor Crewman.  Specifically, his duties included loading gun rounds into a tank firing tube, working in a motor pool around several military track and wheeled vehicles, Tank Gunnery Training at least twice a year, National Training Center at least once a year, and constant exposure to live ammunition during the Gulf War.
 
As will be discussed below, the Board finds the evidence of record does not demonstrate that bilateral hearing loss for VA purposes manifested to a compensable degree within one year of separation from active service.  Therefore, service connection for bilateral hearing loss, on a presumptive basis as a chronic disease, is not available in this case.  See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 

The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Thus, the Board considers whether service connection is warranted for bilateral hearing loss on a direct basis.  

A hearing loss disability for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; 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 (controlled speech discrimination) test are less than 94 percent. 38 C.F.R. § 3.385 (2012).  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss).

The evidence of record demonstrates the Veteran does not have a currently diagnosed bilateral hearing loss disability for VA purposes.  

On VA QTC audiological examination in March 2009, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
15 
25 
30
LEFT
20
5
0
25 
10

It was concluded the Veteran had normal hearing in the right and left ears.  The Board acknowledges there is some degree of bilateral hearing loss beyond the normal ranges as shown by 25 decibels at the 3000 Hertz range in the right and left ears and by 30 decibels at the 4000 Hertz range in the right ear.  See Hensley, 5 Vet. App. at 157.  

Nonetheless, while the speech recognition scores, performed with the Maryland CNC word list, were 76 percent in the right ear and 64 percent in the left ear, the examiner explained that speech understanding ability is questionable.  The "Veteran exhibited behaviors consistent with exaggerating difficulty understanding words.  Maryland CNC word list testing is not consistent with the [Veteran's] audiogram test results and cannot be used to render a diagnosis for the left ear or to note the severity of any hearing loss in this case[.]  [The] Veteran's speech understanding is much poorer than expected based on pure tone thresholds."  

As such, the criteria for a bilateral hearing loss disability for VA purposes are not met according to the March 2009 VA QTC audiological examination report.  

On VA general medical examination in June 2011, physical examination of the ears revealed grossly normal hearing.  The Veteran's pure tone thresholds, in decibels, were not documented in this report.  

An October 2008 private audiogram documents the Veteran's pure tone thresholds, in decibels, were as follows:





HERTZ



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

These audiogram results were provided in graph form, and the Board has depicted the numerical results from the graph.  See Kelly v. Brown, 7 Vet. App. 471, 474   (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record).  

The Board acknowledges there is (it appears) some degree of bilateral hearing loss beyond the normal ranges as shown by 25 decibels at the 500 and 1000 Hertz ranges in the left ear.  See Hensley, 5 Vet. App. at 157.  The examiner noted results from the right ear were within normal limits across tested frequencies, results from the left ear showed mild sensorineural hearing loss through the 1000 Hertz range rising to within normal limits, and the speech discrimination scores were 76 percent in the right ear and 72 percent in the left ear.

The Board finds that the October 2008 private audiogram report lacks probative value with regard to speech recognition testing because there is no indication that the speech recognition testing used the Maryland CNC word list, which is a requirement for a hearing impairment examination for VA purposes.  See 38 C.F.R. § 4.85(a).  The Board finds there is no need for further development to seek clarification on whether the Maryland CNC word list was used when the 2008 private audiologist conducted the speech recognition testing because the March 2009 VA QTC audiological examination report, listed above, provides more probative evidence with regard to substantiating the claim on appeal and addressing this issue.  See Savage, 24 Vet. App. at 249.

Simply stated, while the Board fully understands the Veteran's concerns, and while the Veteran (it appears) has some loss of hearing, he still has hearing within a range of normal that it cannot be said that he has "hearing loss" for VA purposes at this time.

The Veteran was informed in a February 2009 notice letter that he must have evidence of a current disability for his claim on appeal.  He has not presented any competent and probative evidence nor has he provided any information as to where VA could obtain such evidence.  The competent and probative evidence demonstrates the Veteran does not show the manifestation of bilateral hearing loss for VA purposes at any time since separation from service.  As such, the service connection criteria requiring the presence of a current "disability" have not been met and service connection cannot be granted.  See Brammer, 3 Vet. App. at 225.

The Veteran is encouraged to reapply when (or if) his hearing worsens, as his exposure to loud noise in service is conceded. 

For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim of service connection for bilateral hearing loss.  As a result, this claim must be denied and the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

Service Connection for Tinnitus

At the March 2009 VA QTC audiological examination, the Veteran reported having a light and constant ringing tone in both ears.  On an August 2009 VA Form 21-0781, he also reported "experiencing tinnitus (ringing in his ear)."  Most recently, he reported bilateral and constant tinnitus at the June 2010 VA general medical examination.

After a review of all the lay and medical evidence, the Board finds that the Veteran has a current disability of tinnitus.  In Charles v. Principi, 16 Vet. App. 370 (2002), the Court determined that tinnitus is the type of disorder associated with symptoms capable of lay observation.  When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (stating that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition).

The Board finds that the Veteran is shown to have been exposed to loud noise (acoustic trauma) to both ears in service.  As noted above, the Veteran asserts such exposure in statements pursuant to the claim on appeal and service treatment records document the Veteran was routinely exposed to hazardous noise. 

In light of the Board's findings of a current disability for tinnitus, and exposure to loud noise (acoustic trauma) while in service, the remaining question for consideration is whether the Veteran's current diagnosis resulted from the recognized in-service noise exposure.

At the March 2009 VA QTC audiological examination, the Veteran reported military noise exposure, to include gunfire, armor (tank) fire, and grenades, occupational noise exposure, to include machinery (several types), and no recreational noise exposure.  After a review of the claims file and conducting the examination, the examiner provided the following conclusion:

I cannot determine a relationship between the Veteran's bilateral tinnitus without resort to mere speculation.  While it is conceded that the [Veteran] was exposed to elevated noise levels during military service, the [Veteran] also reported post-military occupational noise exposure, and it would be impossible to determine whether one of these or both contributed to the [Veteran's] tinnitus.  The [Veteran's] speech understanding scores are questionable for accuracy as noted above and audiogram testing was within normal limits.

The Court has held that when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability.  Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010).  In this case, the examiner explained why he could not render an opinion regarding the relationship between the Veteran's tinnitus and in-service noise exposure.  As a result, the Board finds the examiner's statement is adequate because is supported with sufficient rationale for why a nexus opinion could not be provided, yet lacks probative value for this claim on appeal due to the absence of an etiological opinion. 

Review of the evidentiary record supports a finding that the Veteran is competent to report his continuous symptoms of tinnitus since service, and the Board finds that such assertions are credible in this case.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The Veteran has repeatedly asserted constant bilateral ringing in his ears, as noted in the March 2009 and June 2010 VA examination reports.  Additionally, the weight of the competent evidence of record does not illustrate an intercurrent event or injury to the Veteran's ears contributing to his tinnitus.  

While there are some issues regarding the consistently of the test results and the Veteran's responses, with resolution of reasonable doubt in favor of the Veteran, the Board finds the Veteran has a current diagnosis of tinnitus, he was exposed to loud noise (acoustic trauma) while in service, and such symptoms of tinnitus have been continuous since separation from service.  See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (holding that lay statements are competent on in-service symptoms and post-service symptoms of dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus that later formed the basis of diagnosis of Meniere's disease).  For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for tinnitus are met.  

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.

The Board finds that the VCAA notice requirements have been satisfied by a February 2009 letter.  In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions.  

As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency.  This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA.

The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the February 2009 letter included the type of evidence necessary to establish a disability rating and effective date.

Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In connection with the claims on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, October 2008 private audiogram report, an article regarding tinnitus, statements by the Veteran, March 2009 VA QTC audiological examination, and June 2010 VA general medical examination.  The examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale.  The Board notes that the VA examination reports are probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal.  The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained.  Therefore, no further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is granted.


REMAND

A remand is required in this case to ensure there is a complete record upon which to decide the issue of service connection for an acquired psychiatric disorder, including PTSD.  In March 2011, the Veteran underwent a VA examination for PTSD.  The examiner conducted a thorough examination of the Veteran, documented the reported history of the Veteran, and rendered an Axis I diagnosis of dysthymic disorder.  In a July 2011 VA addendum report, another VA physician reviewed the claims file and opined that dysthymic disorder was less likely as not permanently aggravated by chronic back pain.  

The Board finds the July 2011 VA medical opinion is inadequate to render a decision for this claim on appeal because the VA physician failed to opine as to whether the Veteran's current psychiatric disorder, dysthymic disorder, is possibly related to service.  As a result, the Board finds that an additional VA medical opinion is necessary to ensure there is a complete record upon which to decide this claim on appeal.  Barr, 21 Vet. App. at 312; see also Stefl v. Nicholson, 21 Vet. App 120 (2007).  The RO should arrange for the Veteran's claims file to be reviewed by the physician who conducted the March 2011 VA examination for PTSD or the physician who prepared the July 2011 medical opinion (or a suitable substitute if these physicians are unavailable) for the purpose of preparing an addendum opinion.

Accordingly, the case is REMANDED for the following actions:

1.  Furnish the Veteran's entire claims file to the physician who conducted the March 2011 VA examination for PTSD or the physician who prepared the July 2011 VA medical opinion (or a suitable substitute if these physicians are unavailable).  The physician must review all pertinent evidence of record and prepare an addendum opinion to as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current acquired psychiatric disorder, to include dysthymic disorder, began during service or is otherwise linked to service.  Another examination of the Veteran is not required. 

A rationale should be given for all opinions and conclusions expressed, and should not be based solely on the absence of psychiatric treatment records during or after service.  

If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond.  If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available.

2.  Thereafter, the issue of service connection for an acquired psychiatric disorder, including PTSD, should be readjudicated.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.

The Veteran and representative have 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).



____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs