Citation Nr: 1331742	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  10-26 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

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

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety disorder, depressive disorder, and a sleep disorder.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and R.G. 


ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1971 to February 1974.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decisions by the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO).  In March 2013, the Veteran appeared and provided testimony before the undersigned acting Veterans Law Judge.  A transcript of that hearing is associated with the Veteran's "Virtual VA" file.  

These matters were previously before the Board in November 2012, at which time it was remanded for further development.  The case has now been returned for appellate review.  

To ensure a complete review of the evidence, the Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system, which included additional VA treatment records that will be discussed in greater detail below.  


FINDINGS OF FACT

1.  A hearing loss disability of either ear was not manifest in service; sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability is related to his service, or to any event or injury therein.

2.  It is reasonably shown that the Veteran's tinnitus had its onset in service and has persisted since.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013).

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her 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).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2009 that fully addressed all notice elements.  This letter was sent prior to the initial RO decision in these matters and informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  Furthermore, the April 2009 letter provided the Veteran notice in compliance with Dingess.  

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the Veteran's service treatment records and pertinent postservice treatment records.  He was afforded a VA medical examination in July 2009.  The examination report indicates that the claims file was reviewed in conjunction with the examination, and the examiner provided an explanation of rationale for her opinion.  As such, the Board finds that this examination is adequate for decisional purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303 (2007).  

Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation.  They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, during the March 2013 Board hearing, the acting VLJ fully explained the issues on appeal, and asked questions focused on the nature and symptomatology of the disabilities in question, specifically as to the first manifestations of the Veteran's bilateral hearing loss disability and tinnitus.  The Veteran was assisted at the hearing by an accredited representative from the Wisconsin Department of Veterans Affairs and additional testimony was provided by a member of Polk County Veterans' Services Office.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked, or was outstanding, that might substantiate the claim.  The Veteran did not identify any outstanding evidence pertaining to the issues decided herein.  Board notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. 

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of her claim.  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).

II.  Legal Criteria and Analysis

The Board has reviewed all of the evidence in the claims folder.  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 these claims.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013).  In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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) (2013). 

Certain chronic diseases (including organic diseases of the nervous system - to include SNHL) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system).  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Hearing loss disability is defined by regulation.  For the purpose 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.

The Veteran contends that he is entitled to service connection for bilateral hearing loss disability and tinnitus, as such were caused by his active service.  Specifically, he has asserted that as a light infantryman, he was exposed to significant noise that caused his current bilateral hearing loss disability and that he began to experience tinnitus while on active service.   

The Veteran's DD Form 214 shows that he served on active duty from May 1971 to February 1974.  His military occupational specialty (MOS) while on active service was light weapons infantry.  

The Veteran's active duty STRs are silent for any complaints, findings, treatment, or diagnoses related to hearing loss or tinnitus.  The STRs do show that at the time of enlistment and separation he was afforded audiometry evaluations.  

On his April 1971 enlistment examination, the Veteran's ears and drums were clinically normal and the Veteran specifically denied any history of hearing loss, or ear, nose, and throat trouble.  On audiometric evaluation, puretone thresholds, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
Not Tested
10
LEFT
15
15
25
Not Tested
25

On his January 1974 separation examination, the Veteran's ears and drums were clinically normal and the Veteran specifically denied any symptoms or history of hearing loss or ear, nose, and throat trouble.  On audiometric evaluation, puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
15
Not Tested
10
LEFT
15
10
25
Not Tested
20

The Veteran was afforded a VA audiological evaluation in July 2009.  At that time, he reported military noise exposure in the form of weapons firing noise, including light weapons, anti-tank weapons, grenade launchers, and heavy machine guns,  without hearing protection; as well as trucks and jeeps.  He also reported that a furnace blew up next to his bunk while on active service.  He reported postservice noise exposure from employment as a carpenter from 1978 to 1985 and working for Habitat for Humanity as a manager of 5 home builds.  He reported that he usually wore hearing protection when working with loud equipment.  He reported recreational noise exposure in the form of occasional use of a chainsaw and a lawn mower, annual deer hunting, and recreational shooting.  He reported that he wore hearing protection when conducting these activities.  He also reported having constant, bilateral tinnitus, and that he first noticed it approximately 8 years prior.  He reported that the tinnitus was more noticeable in quiet environments.  
Audiometry revealed that, puretone thresholds, in decibels, were: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
25
35
45
LEFT
10
15
30
35
50

Average puretone thresholds were 29 decibels in the right ear and 33 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 90 percent in the left ear.  The examiner diagnosed normal to moderate bilateral SNHL.  The examiner noted, that inservice noise exposure was conceded based on the Veteran's exposure to noise from light weapons.  However, the examiner opined that the Veteran's bilateral hearing loss disability and tinnitus were less likely than not related to his conceded noise exposure on active service, and explained that the Veteran's enlistment and separation audiometry evaluations indicated his hearing was within normal limits at entrance and separation, and there was no significant threshold shift in hearing during active service.  Further, there was no documentation of hearing loss or tinnitus during active service, or for approximately 35 years following separation.  The examiner also noted that the Veteran had postservice noise exposure that was a contributing factor in his current hearing loss and tinnitus.  Therefore, the examiner found that hearing loss and tinnitus was unrelated to his military service.  

Also of record are VA and private treatment records that indicate the Veteran seeks treatment for a variety of medical conditions.  However, these records contain no medical opinion indicating that the Veteran's bilateral hearing loss disability or tinnitus is etiologically related to his active service.  

Also of record are several lay statements from the Veteran, made both before and after his July 2009 VA examination, in which he has asserted that his tinnitus began during his active service and continued since.  Additionally, in his September 2009 notice of disagreement (NOD) the Veteran stated that while he told the VA examiner that his tinnitus had become worse during recent years, he had never reported that it did not have its onset during active service.  He also reported that he did not seek treatment for tinnitus prior to filing his claim because he assumed it was "normal" and was unaware that tinnitus was a disability for which VA benefits could be granted.

Additionally, the Veteran testified at a March 2013 Board hearing.  At that time, he testified that he did not remember exactly when his hearing loss first manifested, but he stated that it was a long time ago.  He further testified that his tinnitus began on active service after a furnace exploded next to his bunk.  He testified that he had been experiencing tinnitus since that time, but he reiterated that he had not known that it was a disability.  

Bilateral Hearing Loss Disability

It is not in dispute that the Veteran has a bilateral hearing loss disability by VA standards, as such is shown by official audiometry.  It may also be conceded by virtue of his duties as a light infantryman, that he was exposed to some degree of noise trauma in service (as he relates).  What he must still show to establish service connection for his bilateral hearing loss disability is that it is related to his service, to include as due to noise trauma therein.  

The Veteran's STRs, including the January 1974 separation examination report, are silent for any complaints, findings, treatment, or diagnoses of hearing loss.  In a report of medical history on service separation examination, the Veteran denied having or having ever had hearing loss.  Audiometry at the time did not show a hearing loss disability.  The Veteran has not alleged he has had a hearing loss disability since service.  [The Board notes that even if he had, hearing loss disability is established by audiometry and is beyond the scope of lay observation (although, the Veteran obviously is competent to observe he has difficulty hearing) See 38 C.F.R. § 3.385.]  Consequently, service connection for bilateral hearing loss on the basis that such disability became manifest in service and persisted is not warranted.  As there is no competent evidence that SNHL was manifested in the first postservice year, there is also no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease presumptions (for SHNL as an organic disease of the nervous system).

What remains for consideration is whether or not the Veteran's current bilateral hearing loss disability could, in the absence of continuity since service, be somehow otherwise related to his service.  The only competent (medical) evidence in the record as to whether the Veteran's current hearing loss is related to his service is the report from the July 2009 VA examination, when the examiner opined that the Veteran's current hearing loss was unrelated to his military service.  In explaining the rationale for the opinion, she cited to normal audiometry at separation, with no evidence of a shift during active service, and that the Veteran had some postservice occupational noise exposure that would have contributed to his current hearing loss.  

The Veteran's expressions of his belief that his bilateral hearing loss disability is related to noise trauma in service do not merit any substantial probative value.  They are bare expressions of self-serving opinion, unaccompanied by any explanation of rationale.  They do not cite to supporting clinical data (or medical texts), and do not offer any explanation for the clinical data that weigh against his claim (notably, the lengthy postservice interval before the hearing loss became evident to him and/or was clinically documented, e.g.).  Significantly, whether hearing loss disability may, (in the absence of evidence of continuity, as here) be related to remote noise trauma is a medical question not capable of resolution by mere lay observation; it requires medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.)

Based upon the foregoing, the preponderance of the evidence is against a finding of a nexus between the Veteran's bilateral hearing loss disability and his service, to include his exposure to noise trauma therein.  Accordingly, service connection for bilateral hearing loss is not warranted.


Tinnitus

It is not in dispute that the Veteran has tinnitus as the competent (medical) evidence of record documents his complaints of such, and tinnitus is a disability capable of lay observation (by the person experiencing it).  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  As was noted above, it is also not in dispute that he was exposed to some level of noise trauma in service.  What he must still show to establish service connection for tinnitus is that it is related to his service/noise trauma therein.

On longitudinal review of the evidence, the Board finds that the competent evidence of record reasonably supports the Veteran's allegation that he has had tinnitus ever since service.  See 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 495-96.  The Board finds not implausible his explanation at his March 2013 Board hearing that he was unaware that tinnitus was a separate disability entity for which service connection could be granted.  The Board acknowledges that on July 2009 VA examination, it was the examiner's opinion that the Veteran's tinnitus is unrelated to his military service.  However, she does not account for his reports that were of record at the time of the VA examination, that he has had tinnitus ever since service.  His statements (including in his March 2009 service connection claim, statements submitted in April 2009 and August 2011, and his September 2009 NOD) as they relate to his tinnitus, have been consistent and are considered credible.  The Board finds no reason to reject the Veteran's accounts.

Resolving reasonable doubt in the Veteran's favor, the Board concludes that the competent evidence of record reasonably supports his claim, and that service connection for tinnitus is warranted.


ORDER

Service connection for bilateral hearing loss disability is denied.

Service connection for tinnitus is granted.

REMAND

The Board finds that additional development is needed before the Veteran's remaining claim on appeal is decided.  

At the outset, the Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability.  The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms.  Id. at 4-5, citing Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits."  Id. at 9.  The Court held that, in construing a claim, the Board must consider any disability, "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim."  Id. at 5.

A review of the medical evidence shows that the Veteran has been diagnosed with PTSD, an anxiety disorder, and depressive disorder.  The medical records also show that he consistently complains of a sleep disorder that he relates to his acquired psychiatric disability.  

In light of the Court's decision and evidence of record showing that the Veteran has been treated for several mental health disabilities since his separation from active service, the Board will construe the Veteran's claim as one for entitlement to service connection for an acquired psychiatric disability, to include PTSD, an anxiety disorder, depressive disorder, and a sleep disorder.  

The Veteran has consistently asserted, since filing his claim, that he had a psychiatric disability prior to entering active service as a result of childhood sexual trauma; and that such disability was permanently aggravated by the nature and circumstances of his active service.  However, upon review of the Veteran's April 1971 enlistment examination, the Veteran was not noted to have a psychiatric disability of any kind.  In this regard, his psychiatric evaluation was clinically normal and the Veteran denied any history of psychiatric symptomatology.  

The Board notes that a Veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002).

By "clear and unmistakable evidence" it is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable.  Vanerson v. West, 12 Vet. App. 254 (1999).

The Veteran was afforded a VA examination in October 2010 to address whether the Veteran had inservice military sexual trauma that caused his diagnosis of PTSD.  The Board notes that the Veteran never alleged any military sexual trauma, but rather that his psychiatric condition caused by his childhood sexual trauma was aggravated by his active service.  While the October 2010 VA examiner noted the Veteran had been given a diagnosis of PTSD related to his childhood sexual trauma, the examiner noted that there was no evidence of any inservice event severe enough to have exacerbated the PTSD.  The Board notes that this examination and opinion is inadequate.  Specifically, the RO misinterpreted the Veteran's allegations and as a result asked for an examination and opinion that was not relevant to the Veteran's claim, and further, the VA examiner did not provide an opinion in terms of "clear and unmistakable" as is required by 38 U.S.C.A. § 1111.  As such, the Board finds a new VA examination is warranted.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

Of record are VA and private mental health records that note the Veteran's reports of the childhood sexual trauma and that that the Veteran's active service may have aggravated a psychiatric condition caused by that trauma.  However, as noted above, the Veteran was not noted to have any psychiatric disability at the time of his enlistment.  The VA and private mental health records, and the October 2010 VA examination report, of record do not address whether a psychiatric disability clearly and unmistakably existed prior to the Veteran's active service, despite the fact that the Veteran himself has made such reports.  

Therefore, the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present acquired psychiatric disability, to include whether such disability clearly and unmistakably existed prior to the Veteran's active service.  

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded a VA examination with a psychiatrist or psychologist, different from the April 2010 and October 2010 examiner, to determine the nature and etiology of any currently present acquired psychiatric disability.  The claims file must be made available to and reviewed by the examiner.  All indicated studies should be performed.

Based on the examination results and a review of the record, the examiner should provide an opinion with respect to any currently present acquired psychiatric disability as to whether the disability clearly and unmistakably existed prior to the Veteran's active service and if so, whether it clearly and unmistakably was not aggravated beyond the normal progression of the disability by his active service.  

With respect to any acquired psychiatric disability found to not clearly and unmistakably exist prior to the Veteran's active service, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability is etiologically related to the Veteran's active service.  

For the purposes of this examination, the examiner should assume the Veteran is a credible historian.  The complete rationale for all opinions expressed must be provided. 

2.  The RO or the AMC should confirm that any medical opinions provided comport with this remand and undertake any other development it determines to be warranted.

3.  Then, the RO or the AMC should readjudicate the Veteran's claim of entitlement to service connection for an acquired psychiatric disability.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond.  Thereafter, if indicated, the case should be returned to the Board for further appellate action.  

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



______________________________________________
MATTHEW D. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs