Citation Nr: 1333612 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-36 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: J. Michael Woods, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to January 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over this claim is now with the RO in Indianapolis, Indiana. In April 2012, the Veteran testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The above captioned matters were previously before the Board in July 2012, along with the issues of service connection for right ear hearing loss and bilateral tinnitus. The Board remanded these issues for additional development, specifically requesting a VA examination be provided for each claim. The Board finds the remand directives were completed and this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the Board notes the issues of service connection for bilateral tinnitus and right ear hearing loss were granted in a January 2013 rating decision by the RO. This represents a full grant of benefits sought in these claims and therefore the issues of service connection for tinnitus and right ear hearing loss are no longer before the Board. The Board notes the Veteran's representative requested an extension for "a total of 180 days from 3/15/2013 before the Board issues a decision on this appeal" in order to prepare a brief for this appeal. The extension has been granted, and the Board has held this case for an excess of 180 days since March 2013; however to date the Board has not received a brief from the Veteran's representative. In order to avoid additional unnecessary delay of the Veteran's claim the Board will proceed with adjudicating his appeal. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. At the Veteran's April 2012 hearing he raised the issue of service connection for a skin condition around his crotch which he described as "joke itch." Accordingly the Board finds this issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue of service connection for a skin condition in region of the Veteran's crotch, and it referred to the AOJ for appropriate action. The issue of service connection for a psychiatric condition is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The evidence establishes the Veteran's current left ear hearing disability was caused by his military service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is currently seeking service connection for hearing loss in his left ear. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Because the Board finds the elements of service connection have been met, only limited, relevant evidence will be discussed. As a threshold matter, the Board concedes the Veteran was exposed to very loud noise during his military service, including exposure to tanks and artillery. 38 U.S.C.A. § 1154(a). Therefore in order to establish service connection the Veteran's military noise exposure must cause a hearing loss disability. Under the regulations hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 Court of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service treatment records were reviewed and initial audiometric testing was performed in July 1980, one month before the Veteran began active military service. Audiometric testing was again conducted in October 1981, approximately three months before the Veteran's separation from military service. The results from both these audiograms establish the Veteran continued to have normal hearing acuity throughout his military service. However, the Court has held that even if the audiometric testing results at the Veteran's separation from service do not meet the regulatory requirements for establishing a disability at the time, he is not precluded from establish service connection for a current hearing disability. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Post-service treatment records were also reviewed and the relevant results are summarized below. In April 2008 the Veteran reported experiencing bilateral hearing loss which he related to his military service. Audiometric testing was conducted and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 45 35 55 -- 70 LEFT 35 40 60 -- 60 The Board finds the results of this audiometric testing show the auditory thresholds at 2000 and 4000 Hertz were greater than 40 decibels in the Veteran's left ear, and thresholds at 500, 1000, 2000, and 4000 were all greater than 26 decibels. Accordingly, the Board finds the Veteran has a current hearing loss disability in his left ear for VA purposes. 38 C.F.R. § 3.385. The Veteran was also provided with a VA examination to evaluate the nature and severity of his hearing loss in November 2012. The Board acknowledges the results from audiometric testing performed during this exam do not establish the Veteran had a hearing disability for VA purposes in his left ear at that time. However, the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, notwithstanding the results from the VA examination, the Board finds the Veteran has a current hearing loss disability in his left ear. Finally, the examiner's report from November 2012 opined the Veteran had hearing loss in his left ear which was at least as likely as not caused by his noise exposure during his military service. Therefore, the Board finds the Veteran meets all elements of service connection and his claim for left ear hearing loss is granted. Duties to Notify and Assist The Veteran's claim for service connection for left ear hearing loss is granted, constituting a full grant of all benefits sought regarding this issue. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary as any potential failure of VA in fulfilling these duties is harmless error. ORDER The claim for service connection for left ear hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran is also seeking service connection for an acquired psychiatric disorder, to include depression and PTSD. The Board greatly regrets the additional delay, but as will be discussed this issue must again be remanded for additional development. The Veteran was provided with a VA examination to evaluate the nature and severity of his current psychiatric condition in November 2012. The examiner provided a lengthy report in which he cited to several recent VA treatment records in reaching his opinion. Unfortunately, the claims file before the Board does not include several of the treatment records referenced. Specifically, the examiner referenced VA treatment records through November 2012, while the most recent records in the claims file are from August 2009. Accordingly remand is required to obtain these updated VA treatment records. Additionally, in his November 2012 report the VA examiner opined the Veteran's depression may be due to his physical health conditions. However, the examiner did not clarify if the Veteran's depression was due to the Veteran's service-connected health conditions or his non service-connected health conditions (an important distinction). Therefore the Board finds an addendum opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records from August 2009 to present, specifically including the treatment records referenced in the November 2012 VA examinations report, and associate them with the claims file. 2. After obtaining the updated treatment records, return the Veteran's claims file to the same examiner who provided the November 2012 psychiatric examination, if available, or a similarly qualified examiner (another examination is not required). The examiner should be provided with the Veteran's complete claims file, including updated VA treatment records, and a complete rationale should be provided for any opinion expressed. An additional examination of the Veteran should be scheduled, if required. Consistent with the factual history the examiner should provide an opinion as to the following question: Is it as likely as not (50 percent or greater) the Veteran's currently diagnosed depressive disorder is caused or permanently worsened by his service-connected problems (tinnitus, bilateral hearing loss, or dermatophytosis of bilateral hands and feet)? 3. Then, readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs