Citation Nr: 1335062	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  10-43 999A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to an increased rating for service-connected dysthymia/depressive disorder, evaluated as 50 percent disabling prior to November 15, 2011, and as 70 percent disabling thereafter.

3.  Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Stephen Eckerman, Counsel


INTRODUCTION

The Veteran served on active duty from April 1985 to June 1994.  

This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky.  The TDIU claim has been the subject of previous Board remands.  

The issue of entitlement to an increased rating for service-connected dysthymia/ depressive disorder, evaluated as 50 percent disabling prior to November 15, 2011, and as 70 percent disabling thereafter, while not certified for appeal along with the hearing loss claim in July 2013, remains on appeal and 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. 

(The issue of whether there was clear and unmistakable error (CUE) in a Board rating decision dated October 27, 2010 is the subject of a separate Board decision.)


FINDINGS OF FACT

1.  The Veteran does not have hearing loss that was incurred in or aggravated by active duty, and sensorineural hearing loss was not manifest to a compensable degree within one year of discharge from service.  

2.  The Veteran's current total combined rating for service-connected disabilities is 90 percent, as follows: 70 percent disabling for dysthymia/depressive disorder; 60 percent disabling for port wine staining associated with service-connected Sturge-Webber syndrome; 20 percent disabling for Sturge-Webber syndrome; 10 percent for right ear tinnitus; and noncompensable for a left eye disability. 


3.  The Veteran's service-connected disabilities, taken together, render him unable to obtain and maintain substantially gainful employment.


CONCLUSIONS OF LAW

1.  Hearing loss was not incurred or aggravated during service.  38 U.S.C.A. §§ 1101, 1110, 1131, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a), 3.385 (2013).   

2.  The criteria for TDIU have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16(a) (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Service Connection

The Veteran asserts that he has bilateral hearing loss due to his service.  He asserts that he developed hearing loss as a result of his duties as a sonarman aboard a submarine which often required six hours of continuous exposure to sonar noise.  See Veteran's claim (VA Form 21-4138), received in July 2008.  

Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).  Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309.  It is appropriate to consider high frequency sensorineural hearing loss as an organic disease of the nervous system and, therefore, subject to presumptive service connection.  See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; see also VA Adjudication Manual, M21-1MR III.iv.4.B.12.a. ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)").    

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Id.  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).  A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed.  Id.  

Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less.  38 C.F.R. § 3.385 (2013). 

38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service.  Hensley  v. Brown, 5 Vet. App. 155 (1993). 

Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385.  Hensley, 5 Vet. App at 155.  If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes.  Id. at 159.

The Veteran's service records include his discharge (DD Form 214) which shows that his military occupation specialty was submarine sonar basic maintenance technician.  

The Veteran's service treatment reports include a number of audiometric test results, dated between 1985 and 1994, which do not show that the Veteran had bilateral hearing loss as defined for VA purposes at 38 C.F.R. § 3.385.  This evidence does not show treatment for complaints of hearing loss, or a diagnosis of hearing loss.  Examination reports, dated in February and May of 1985, July 1989 and November 1991, show that the Veteran's ears and drums were clinically evaluated as normal.  In each case, with one exception, in an associated "report of medical history," the Veteran denied a history of hearing loss.  In an associated "report of medical history" for the November 1991 report, the Veteran denied a history of hearing loss.  However, the associated notation on the back of the report merely notes "ENT (ear, nose and throat) trouble - glaucoma of left eye from melanocytosis."    

As for the post-service medical evidence, it consists of VA and non-VA reports, dated between November 1994 and 2013.  The relevant evidence is summarized as follows:  

A VA audiometric examination report, dated in August 2008, shows that the examiner stated that the Veteran's claims file was available for review.  The Veteran complained of unilateral tinnitus in the right ear, but denied difficulty hearing, although he reported sensitivity to loud or excessive noise.  The report notes that the Veteran had normal hearing upon entrance into, and separation from, service.  Upon audiometric examination, the Veteran did not have hearing loss in either ear, as defined for VA purposes at 38 C.F.R. § 3.385.  The diagnosis noted normal hearing sensitivity in the left ear, and normal hearing sensitivity in the right ear through 2,000 Hz, with notching mild to moderately severe sensorineural hearing loss in the right ear.  

A VA audiometric examination report, dated in April 2009, shows that the examiner stated that the Veteran's claims file was available for review.  The Veteran complained of "unilateral hearing loss," and unilateral tinnitus in his right ear, which he said he noticed within one year of separation from service.  Upon audiometric examination, the Veteran had hearing loss in the right ear, but not the left ear, as defined for VA purposes at 38 C.F.R. § 3.385.  The diagnosis was unilateral sensorineural hearing loss, right ear.  The examiner concluded that it was less likely as not that the Veteran's hearing loss was the result of his service, explaining that his hearing loss was within normal limits upon discharge from service.  

A VA audiometric DBQ (disability benefits questionnaire), dated in February 2013, shows that the examiner stated that the Veteran's claims file was available for review.  Upon audiometric examination, the Veteran had hearing loss in the right ear, but not the left ear, as defined for VA purposes at 38 C.F.R. § 3.385.  The Veteran examiner noted the following: the Veteran's audiograms taken during service showed normal hearing, bilaterally.  When the first and last audiograms taken during service were compared, there was no evidence of any significant threshold shifts in either ear.  The examiner concluded that hearing loss was not present at enlistment or upon the last audiometric examination done prior to separation from service, and that there were no significant threshold shifts during service.  She concluded, "Based on this information hearing loss is therefore deemed less likely as not (50/50 probability) caused by or a result of military noise exposure.  She further noted that per IOM (National Academies of Science Institute of Medicine) there is no scientific evidence to support delayed-onset hearing loss due to noise exposure.  Finally, the examiner noted that the Veteran's history was positive for recreational noise exposure while hunting without the use of hearing protection, and that such recreational noise exposure could, in part, be a contributing factor to his unilateral hearing loss.  She stated that beyond that possibility, it could not be stated with any certainty as to what might have caused the Veteran's hearing loss.  

The Board finds that the claim must be denied.  With regard to the left ear, the Veteran is not shown to have had, at any time during service, or thereafter, hearing loss in either ear, to include as defined for VA purposes at 38 C.F.R. § 3.385.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. §§1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation).  The Board further points out that there is no competent medical opinion of record that links current left ear hearing loss to the Veteran's service.  Accordingly, service connection for left ear hearing loss is denied.  

With regard to the right ear, the Veteran is not shown to have had hearing loss, to include as defined for VA purposes at 38 C.F.R. § 3.385, during service.  The earliest medical evidence of right ear hearing loss is dated no earlier than 2009, which is about 16 years after separation from active duty service.  There is no competent medical opinion of record that links current right ear hearing loss to the Veteran's active duty service.  The only competent opinion of record is found in the April 2009 and February 2013 VA examination reports, and these opinions weigh against the claim.  In particular, while the April 2009 opinion suffers from certain defects which decrease its probative value, see Hensley, the February 2013 opinion is considered highly probative, as the examiner indicated that the Veteran's claims files had been reviewed, and the opinion is accompanied by a sufficiently detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Finally, there is no competent evidence to show that sensorineural hearing loss was manifested to a compensable degree in either ear within one year of separation from service.  See 38 C.F.R. §§ 3.307, 3.309.  The Board therefore finds that the preponderance of the evidence is against the claim, and that the claim must be denied.  

With regard to the appellant's own contentions, a layperson is normally be presumed competent to report certain types of symptoms, to include hearing loss.  See e.g., Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  However, the Veteran does not have the requisite skills, knowledge, or training, to be competent to provide a diagnosis of hearing loss, or to state whether it was caused by service.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir. 2012).  The Board has discussed the Veteran's service treatment records, and the post-service medical evidence, and an opinion has been obtained that weighs against the claim.  This lay evidence therefore lacks sufficient probative value to warrant a grant of the claim.  Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997).  

Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that he has hearing loss that was incurred in, or is otherwise related to his military service.  

The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis.  38 U.S.C.A. § 5107(b) (West 2002).  Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied.  

II.  TDIU

The issue of TDIU was most recently before the Board in April 2013, at which time the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development; specifically, to obtain an adequate examination.  To this point, it does not appear that such development has been undertaken, and no supplemental statement of the case (SSOC) has been rendered concerning the TDIU issue.  Nonetheless, the matter has again come before the Board, which has given this body another opportunity to consider the matter de novo.  As the decision below is favorable to the Veteran, there is no prejudice in proceeding with a decision on the merits without an SSOC.   

VA may assign TDIU where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability.  See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.  TDIU may be assigned on a schedular basis under § 4.16(a) or on an extra-schedular basis under § 4.16(b).  Id.  The schedular basis requires that certain percentage requirements are met.  That is, if the Veteran has one service-connected disability, it must be rated at 60 percent or greater and if the Veteran has two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).  Disabilities resulting from common etiology or a single accident are to be considered one disability for the purpose of satisfying the 60 percent criterion or the 40 percent criterion.  Id.  

If the evidence preponderates in the Veteran's favor as to all elements, or is in equipoise, then the benefit must be granted.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales, supra (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

In this case the Veteran's current total combined rating for service-connected disabilities is 90 percent, as follows: 70 percent disabling for dysthymia/depressive disorder; 60 percent disabling for port wine staining associated with service-connected Sturge-Webber syndrome; 20 percent disabling for Sturge-Webber syndrome; 10 percent for right ear tinnitus; and noncompensable for a left eye disability.  Accordingly, he meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a).  The question remaining is whether the Veteran is unable to secure and follow a substantially gainful occupation due to his service connected disabilities. 

The Board acknowledges the February 2011 VA examination report and opinion prepared by an examiner certified in occupational medicine, which states that there are employment opportunities for the Veteran.  However, the development requested by the Board in the April 2013 remand has not been undertaken, and the renewed arguments presented by the Veteran's representative in conjunction with the Veteran's statements, are persuasive evidence to the Board that the Veteran meets the criteria for TDIU.  Of particular importance is the notion that the Veteran's service connected dysthymia/depressive disorder, which is currently rated as 70 percent disabling, encompasses significant difficulty with obtaining and maintaining employment.  In view of this factor in conjunction with the other significant disabilities the Veteran has, it is the Board's conclusion that, after affording the Veteran all reasonable doubt in his favor, that an award of TDIU is warranted.  

The Board emphasizes that entitlement to TDIU does not require total occupational impairment, but rather requires that the individual is unable to secure and follow a substantially gainful occupation.  The severity of the Veteran's various service connected disabilities are such that he is unable to secure and follow a substantially gainful occupation. Based on the record and for the reasons just discussed, the Board finds that the preponderance of evidence shows that the Veteran's service-connected disabilities render him unable to follow a substantially gainful occupation.  As he cannot secure and follow a substantially gainful occupation due to service-connected disability the remaining criterion for TDIU are met and his appeal must be granted.





II.  The Veterans Claims Assistance Act of 2000

The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2009.  Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The RO has obtained the Veteran's VA and non-VA medical records.  In this regard, in August 2008 and August 2010, the RO issued memorandums in which it concluded that all attempts to obtain records from the Social Security Administration had been correctly followed, and that all efforts to obtain these records have been exhausted, that further attempts to obtain these records would be futile and that, based on these facts, the records are not available.  In each case, that same month, the RO notified that Veteran and his representative that any further attempts to obtain additional service records would be futile.  See 38 C.F.R. § 3.159(e) (2013).  The Veteran has been afforded examinations, and etiological opinions have been obtained. 

Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  




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ORDER

Service connection for hearing loss is denied.

Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is granted.


REMAND

In July 2008, the Veteran filed a claim for an increased rating for service-connected dysthymia/depressive disorder, evaluated as 50 percent disabling.  In April 2009, the RO denied the claim.  The Veteran appealed, an in January 2012, the RO granted the claim, to the extent that it assigned a rating of 70 percent with an effective date of November 15, 2011.  In the RO's decision, it stated, "This decision is considered a full grant of benefits sought on appeal for this condition."  

However, since this increase did not constitute a full grant of the benefits sought, the higher evaluation issues remain in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).  A supplemental statement of the case has not yet been issued concerning the increased rating of 70 percent for dysthymia/depressive disorder, and the Veteran may be under the false impression that this issue is no longer on appeal.  Applicable VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant.  38 C.F.R. §§ 19.37, 20.1304 (2012).  Therefore, the claim must be referred to the RO/AMC for review and preparation of a SSOC. 

While the Veteran has been awarded TDIU herein, such award was based on the combined effect of the Veteran's multiple disabilities.  To the extent the Veteran may be entitled to higher staged ratings independently for his dysthymia/depressive disorder, such may affect the effective date of the award of TDIU, or of possible entitlement to the award of additional monetary benefits under special monthly compensation.  This may be possible if there is in an increase in ratings of his other service-connected disabilities or in the event that additional disabilities are service-connected in the future. 

Accordingly, the case is REMANDED for the following action:

Issue a supplemental statement of the case on the issue of entitlement to an increased rating for service-connected dysthymia/depressive disorder, evaluated as 50 percent disabling prior to November 15, 2011, and as 70 percent disabling thereafter.  A copy of this SSOC must be associated with the claims files.

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 2002 & Supp. 2012).


____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs