Citation Nr: 1334557 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-36 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a higher rating than 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a veteran who had active service from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Nashville, Tennessee, which denied service connection for bilateral hearing loss and an increased rating for PTSD. In support of his claim, the Veteran testified at a video conference at the RO in January 2012 before the undersigned Veterans Law Judge of the Board. During the hearing, the Veteran and his representative indicated they would be submitting additional VA treatment records from the Vet Center. They also indicated they would waive the right to have the RO initially consider this additional evidence, once submitted, as the Agency of Original Jurisdiction (AOJ). 38 C.F.R. §§ 20.800, 20.1304. They since have submitted this additional evidence. In August 2010 along with his substantive appeal, the veteran indicated that he had to leave work due to his PTSD. The Board has considered Rice v. Shinseki, 22 Vet. App. 447 (2009), which holds that where a veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU. However, at the videoconference hearing the Veteran indicated that he retired from his most recent employment and this was not based on disability; that he receives age-based Social Security Administration benefits; since retirement he co-owned a business; and that he is working at a car wash. As such, consideration of a TDIU under Rice is not necessary. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Appellant if further action is required. REMAND The Veteran is claiming that an increased rating is warranted for PTSD. A VA examination was conducted in September 2009. At his hearing, he described in detail how his symptoms worsened since this VA examination conducted 4-years previously. Therefore, the Board finds that the Veteran should be afforded another VA compensation examination to assess the current degree of disability of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). He also testified during his hearing that he had received relevant treatment or counseling at the Chattanooga Vet Center. Therefore, his records need to be obtained and considered-especially since VA clinicians at the Chattanooga Vet Center submitted December 2011 statements on his behalf supporting his claim for an increase in the rating for his PTSD. The Veteran also contends he developed hearing loss because of repeated exposure to excessively loud noise and resultant injury (acoustic trauma) due to his military combat. He also had a VA audiology examination in September 2009. The VA audiologist determined the Veteran's hearing loss was unrelated to his military service stating that "[b]ased on review of C-file including SMR and the fact that no hearing loss was present at separation, the veteran's hearing loss is not caused by or a result of military noise exposure." Significantly, however when reporting the relevant medical history during service, she, mistakenly indicated that his hearing was within normal limits at time of his entrance in service. She apparently did not consider the 25 decibel loss in the relevant 4000 Hertz frequency as suggestive or indicative of some impaired hearing in service. However, the United States Court of Appeals for Veterans Claims (Court) holding in Hensley v Brown, concludes otherwise and indicates any loss greater than 20 decibels constitutes hearing loss. See Hensley v Brown, 5 Vet. App. 155 (1993). Therefore, it cannot be said that the Veteran's hearing was within normal limits at entrance into service. Such a discrepancy, in which the examiner did not take the Veteran's accurate medical history into consideration, would resultantly diminish the probative value of any opinion erroneously relying on this history. Further, the VA opinion is also inadequate because in the rationale for the opinion the examiner specifically cites to the Veteran's normal separation examination as the foundation for the opinion despite the fact that current case law instructs that an examiner may not rely on the fact that the Veteran's hearing was within 'normal' limits for VA purposes, or non-ratable as per 38 C.F.R. §3.385, at the time of separation from service, as the basis for any opinion provided. Doing so would render the opinion inadequate. See Hensley v. Brown, 5 Vet. App. 1 (1993). Additionally, because the Veteran is competent even as a layman to report the onset of hearing loss, the examiner should specifically address the Veteran's report of any hearing loss in determining whether the current hearing loss is related to his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore in this regard, at his video conference hearing the Veteran's representative cited to a 2006 study: Implications of hearing loss and tinnitus, by the National Academies Press. The representative interpreted certain findings from this study as positive arguments regarding the Veteran's theory of hearing loss. The audiologist should comment on this study, if possible. Lastly, at his hearing the Veteran reported that he would attempt to obtain medical record that specifically pertained to his hearing from the company that replaced his former employer, DuPont Industries. He has not yet submitted these records. The RO/AMC should help him obtain those records. Accordingly, the case is REMANDED for the following action: 1. The RO is requested to furnish the Veteran the appropriate release of information forms in order to obtain copies of all VA and private medical records pertaining to treatment for his PTSD and hearing loss, which have not been previously obtained including records from the Chattanooga Vet Center and DuPont Industries. 2. The Veteran should be afforded a VA examination to determine the severity of his service-connected PTSD. The examiner is asked to report on the presence or absence of specific symptoms including but not limited to those set forth as examples in the general rating formula for mental disorders. The examiner must assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV), and explain what the assigned score represents. A complete rationale for any opinion expressed must be provided. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. 3. Return the claims file to the VA examiner that performed the September 2009 compensation evaluation of the Veteran, if still available, and ask that she submit an addendum statement concerning the likelihood (very likely, as likely as not, or unlikely) the hearing loss was incurred in or aggravated (permanently worsened) by the Veteran's active military service. In making this determination of causation, the examiner is requested to address the evidence of some impaired hearing loss in the left ear on pre-induction examination in May 1968 (25 decibel loss at 4000 Hertz in the left ear). As the Veteran is competent even as a layman to report the onset of hearing loss while in service, the examiner must specifically address his report of any manifestation during his service and continuance since, in determining whether his hearing loss was incurred in service. As well, the audiologist should comment on the 2006 study (mentioned by the Veteran's representative at the January 2012 video conference) concerning the implications of hearing loss and tinnitus, by the National Academies Press. In providing answers to the above questions, the examiner is advised that he cannot rely on the fact that the Veteran's hearing was within "normal" limits for VA purposes, or non-ratable as per 38 C.F.R. §3.385, at the time of separation from service, as the basis for any opinion provided because doing so would render the opinion inadequate. See Hensley v. Brown, 5 Vet. App. 155 (1993); also see Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). A complete rationale for any opinion expressed must be provided. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. 4. Thereafter, the RO should readjudicate the issues in appellate status. If the benefits sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).