Citation Nr: 1336502	
Decision Date: 11/08/13    Archive Date: 11/22/13

DOCKET NO.  11-23 021	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder.

2. Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Adam Burns, Agent


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel





INTRODUCTION

The Veteran served on active duty from April 1970 to August 1973.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.

The RO also denied service connection for tinnitus and a lung condition in the original rating decision. However, the Veteran only filed a notice of disagreement as to the issues of service connection for depression and service connection for bilateral hearing loss. Therefore, only these issues are on appeal.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDINGS OF FACT

1. The Veteran's acquired psychiatric disorder, to include depression, is not causally related to an in-service disease, injury, or event. 

2. Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service.


CONCLUSIONS OF LAW

1. The criteria for service connection for an acquired psychiatric disorder, to include depression, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013).

2. Bilateral hearing loss was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veteran's Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in August 2010, prior to the initial unfavorable adjudication in December 2010. This letter advised the Veteran of what evidence was necessary to substantiate his claims, the evidence VA would obtain, the evidence the Veteran must provide, and how disability ratings and effective dates are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with a VA psychological examination in October 2010 and an audiological examination in November 2010. The examinations were adequate because the examiners reviewed the claims file, conducted medical examinations of the Veteran, and provided sufficient supporting rationales for their respective opinions. Based on the foregoing, the Board finds the examination reports to be adequate as sufficient information was provided upon which to reach a decision on the Veteran's claims for service connection for an acquired psychiatric disorder and bilateral hearing loss. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Service Connection for an Acquired Psychiatric Disorder

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id.

The Veteran contends that he has depression as a result of his active duty service. As explained below, the preponderance of the evidence is against a finding that the Veteran's depression is causally related to an in-service event or injury. The elements of service connection will be addressed in turn.

First, the Veteran has a current disability. The Veteran was provided with a VA psychological examination in October 2010 in which the examiner diagnosed the Veteran with depression, not otherwise specified (NOS). Therefore, the Board finds that the Veteran has a current disability.

Second, an in-service disease, injury, or event has been established. The Veteran's service treatment records reflect complaints of anxiety, nervousness, lethargy, depression, and chronic fatigue, although the Veteran was eventually diagnosed with inadequate personality disorder and adjustment disorder as opposed to depression. Based on these records, the Board finds that this element has been met. 

Third, the Veteran's depression is not causally related to his service. The Veteran was provided with a VA psychological evaluation in October 2010. The examiner found that the Veteran's depression was less likely as not caused by or a result of his military service. In support of this opinion, the examiner stated that during the examination the Veteran exclusively linked his depression to various aspects of his personal life, including marital strife, legal troubles, financial problems, unemployment, medical issues, and a 1986 industrial accident. The examiner noted that during the two hour examination the Veteran did not once link his depression to his military service.

The Veteran submitted a lay statement through his representative indicating that the VA examiner's opinion was based on an inadequate set of facts because his argument that his depression is linked to his mistreatment at the hands of his supervising officer was not considered. However, the examiner specifically noted service treatment record entries from March 20, 1972 and August 16, 1972 in which the Veteran complained of unfair treatment at the hands of his division and supervisors. The Veteran also specifically mentioned his mistreatment when the examiner directly questioned him about his military history. The Veteran reported that he believed his supervisor was out to get him from the beginning, that his superior never let up on him, and that it was one punishment after the next. Thus, the Board finds that the examiner took ample note of the Veteran's contention that his superior treated him unfairly during service. As the October 2010 examiner took into account the Veteran's contentions, reviewed the claims file, examined the Veteran, and provided a thorough rationale for the opinion, the Board finds that the opinion is competent, credible, and based on accurate facts. See Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312. As such, it is entitled to significant probative weight.

Turning to the lay evidence, as mentioned above, the Veteran stated that his depression is linked to his supervisor's unfair treatment of him while in he was in the Navy. However, the Veteran's VA treatment records reflect that the Veteran has consistently linked his depression to other causes. VA treatment records from March 2004 to September 2010, and particularly psychological evaluations in July 2006 and April 2010, note that the Veteran linked his depression almost exclusively either to recent life occurrences, such as marital strife, financial problems, upcoming weddings, legal troubles, unemployment, and health problems, or to an industrial accident in 1986. Only a May 2010 VA mental health note mentions the Veteran complaining about his time in the Navy, but he did not mention his supervisor or state he had been depressed since service. Such inconsistencies undermine the reliability of the Veteran's statements. Therefore, the Board finds that the Veteran's assertion that his current symptoms are causally related to his service to be not credible, and the statements are accorded no probative weight. Moreover, the VA examiner conducted an extensive examination and determined that the current psychiatric disorder was not related to service.  Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's depressive disorder is causally related to his military service.

Although the Veteran has established a current disability and an in-service injury or event, the preponderance of the evidence weighs against a finding that the Veteran's major depressive disorder is related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

The Board notes that the Veteran was diagnosed with inadequate personality disorder while in-service. However, congenital or developmental defects such as personality disorders are not "diseases" or "injuries" within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. This is because defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90. 

III. Service Connection for Bilateral Hearing Loss

As stated previously, service connection requires: (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson, 581 F.3d at 1315-16; Shedden, 381 F.3d at 1167. Injuries or diseases diagnosed after service may be service connected when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

Due consideration must be given to all pertinent medical and lay evidence when evaluating a claim. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is (1) competent to identify the medical condition, (2) reporting a contemporaneous medical diagnosis, or (3) describing symptoms that support a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Lay evidence cannot be found to be not credible merely due to a lack of contemporaneous medical evidence. Buchanan, 451 F.3d at 1336-37. However, the lack of contemporaneous medical evidence can be weighed against lay statements. Id. Similarly, a negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system such as sensorineural hearing loss, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). 

If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. § 3.303(b), 3,309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id.

With respect to the first Shedden element, there is sufficient evidence to indicate the Veteran has a current disability. The Veteran was provided with a VA audiological examination in November 2010. The results of that exam were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
50
50
55
65
LEFT
40
45
50
60
70

Speech recognition was 100 percent in the right ear and 96 percent in the left ear. Based on the examination results the Board finds that the Veteran has a current disability. 38 C.F.R. § 3.385.

Second, there is sufficient evidence to indicate the presence of an in-service event or injury. The Veteran's DD 214 shows that he served as a hull maintenance technician and he has stated that his hearing loss is due to his exposure to noisy boiler and pump rooms. As the noise exposure is consistent with the circumstances of the Veteran's service, the in-service element of service connection has been met. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

As to the third Shedden element, the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss is causally linked to his service. The Veteran was provided with a VA audiological examination in November 2010. The examiner determined that the Veteran's bilateral hearing loss was less likely than not caused by or the result of noise exposure. The examiner based the opinion on a lack of evidence of hearing loss in service and on the fact that the Veteran reported significant post-service occupational and recreational noise exposure. The Veteran stated he worked for approximately 13 years as a millwright cutting metal and installing heavy machinery, which was done without hearing protection. He also stated he flies ultra-light planes and does woodworking for recreation. He reported that he does not use hearing protection during these activities, although while using loud woodworking tools he will occasionally turn his hearing aids off. As the November 2010 examiner reviewed the claims file, examined the Veteran, and provided a thorough rationale for the opinion, the Board finds that the opinion is competent and credible. See Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312. As such, it is entitled to significant probative weight.

In support of his claim, the Veteran has stated that his bilateral hearing loss is due to service. While he is competent to report the symptoms of bilateral hearing loss, the Veteran is not necessarily competent to establish a nexus between his in-service noise exposure and his bilateral hearing loss. Jandreau, 492 F.3d at 1377. He stated in his October 2010 psychological examination that he purchased hearing aids when he was 25 and stated in his claim he has received treatment since 1972 for bilateral hearing loss. However, the separation examination in August 1973 found no defects with respect to the Veteran's hearing. In addition, the Veteran did not report any difficulties with his hearing at that time. The Veteran's statements conflict with the separation examination report and are therefore not credible.  

As a result, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's bilateral hearing loss and his service. As such, service connection for bilateral hearing loss on a direct basis is not warranted. See 38 C.F.R. § 3.303.

Regarding presumptive service connection under 38 C.F.R. § 3.309, the Veteran's service treatment records are silent for complaints of hearing loss or a diagnosis of bilateral hearing loss. Similarly, the Veteran's medical records are negative for any complaints of or treatment for bilateral hearing loss from his separation from service in August 1973 to the filing of his claim in July 2010. Therefore, the Board finds that sensorineural hearing loss was not diagnosed in service nor does the evidence show that it was manifested to a compensable degree within one year of separation from service, and thus presumptive service connection is not warranted. See 38 C.F.R. § 3.309.

Concerning continuity of symptomatology, it is noted that the separation examination findings were normal and the Veteran did not report any hearing difficulties at that time. Therefore, service connection for bilateral hearing loss based on continuity of symptomatology after discharge is not warranted. 38 C.F.R. §§ 3.303(b), 3.309; Walker, 708 F.3d 1331. Moreover, the Veteran's statements are outweighed by the more probative VA opinion which determined that it was less likely as not that current hearing loss is related to service and provided a rationale therefore.  

Although the Veteran has established a current disability and an in-service injury or event, the preponderance of the evidence weighs against a finding that the Veteran's bilateral hearing loss is causally related to his service or that it manifested in service or within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.


ORDER

Entitlement to service connection for an acquired psychiatric disorder, including depression, is denied.

Entitlement to service connection for bilateral hearing loss is denied.



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs