Citation Nr: 1336711 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 08-01 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for a sleep disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran who served on active duty from November 1965 to November 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). This appeal was before the Board in February 2011, at which time the issues addressed herein were remanded for further development. The Board has considered the Veteran's Virtual VA and Veterans Benefits Management System records in its adjudication of this appeal. The issues of entitlement to service connection for an acquired psychiatric disorder and for a sleep disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Bilateral hearing loss is not shown to be the result of in-service noise exposure, and did not have its onset during the first year following separation from active duty. CONCLUSION OF LAW Bilateral hearing loss disability was not incurred in or aggravated by active military service, nor may a sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Here, the Veteran was sent a letter in June 2006 that fully addressed all VCAA notice elements for service connection claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Specifically, the results of a July 2011 VA examination, as well as an October 2011 addendum, as requested by the February 2011 remand, are of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's statements in support of the claim are of record, including testimony provided at an October 2010 Travel Board hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his service connection claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). With chronic disease (as defined in 38 C.F.R. § 3.309(a)) shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss (identified as "other organic diseases of the nervous system"), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence & Analysis Initially, the Board concedes that the Veteran has a current hearing loss disability meeting VA criteria for a compensation purposes. See 38 C.F.R. § 3.385. Although his audiometric testing results following his January 2010 VA examination did not meet the applicable criteria, subsequent testing in July 2011 showed hearing loss of 40 decibels at 3000 Hertz and 55 decibels at 4000 Hertz in the left ear, and hearing loss of 40 decibels in the right ear at 4000 Hertz. Id. The Board also concedes that the Veteran experienced traumatic in-service noise exposure. The Veteran was an armored tank crewman while on active duty, which involved driving tanks and loading and firing the main tank gun. That occupational specialty involved exposure to loud noise within tanks, as well as significant noise exposure from the steady firing of tank guns. This exposure was acknowledged and addressed in the June 2010 and July 2011 VA examination reports. Thus, the remaining question before the Board is whether the Veteran's current hearing loss disability is etiologically related to his in-service noise exposure, or whether his hearing loss began within the first post-service year. The Veteran's induction examination occurred in October 1965. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to units that have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI), as the current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. This means adding to the reported findings 15 decibels at the 500 dB level, 10 decibels at the 1000, 2000, and 3000 dB levels, and 5 decibels at the 4000 dB level. In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. The results of the October 1965 examination were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 5 (ASA: -5) 0 (-10) 0 (-10) -5 (-10) 0 LEFT 0 (-10) 0 (-10) 0 (-10) -5 (-10) -1.25 At his November 1967 separation examination, the Veteran's hearing loss was uniformly normal: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 0 0 -- 0 0 LEFT 0 0 -- 0 0 In June 2009, the Veteran saw Dr. R.P., a private ear, nose, and throat (ENT) specialist, who diagnosed him with bilateral high frequency hearing loss. Dr. R.P. opined that "[t]his hearing loss is associated with his time in the military, when he worked with tank artillery." In January 2010, the Veteran underwent a VA audiological examination. In his examination report, after reviewing the in-service audiometric testing and considering the Veteran's in-service noise exposure, the audiologist opined that bilateral hearing loss was not the result of in-service noise exposure. The examiner explained that service records clearly showed the appellant had normal hearing on his discharge examination, and that his treatment records were negative for complaint or treatment on active duty. The fact that hearing loss was first diagnosed more than 35 years after separation supported the conclusion that hearing loss could not be the result of service noise; hearing loss from noise exposure manifests itself at the time of exposure or very soon after a period of prolonged exposure, and there is no scientific evidence to support late onset noise-induced hearing loss once a person is removed from a noisy environment. Further, the hearing loss present on examination was the level of hearing loss that was typical of the normal aging process. Per the Veteran's October 2010 hearing testimony, he believes he had hearing problems while on active duty, but he did not actually detect it during active duty. He first sought treatment for hearing loss in the 1990s. He indicated that Dr. R.P. had told him that his hearing loss was consistent with the noise exposure that he had in service, and that such hearing loss is gradual. The Veteran underwent a July 2011 VA audiological examination. In addition to his in-service noise exposure, the Veteran informed the examiner that after service, he worked building bombs and missiles for more than three years, in a machine shop for one year, and as a truck driver for 19 years. The examiner diagnosed the Veteran with a hearing loss disability, but did not have the claims file at the time of the examination, and deferred providing an opinion. Thereafter, in October 2011, with the claims file present, the examiner provided a negative etiology opinion for the Veteran's hearing loss. The examiner opined that the Veteran's hearing loss was unrelated to active duty noise exposure, explaining that his hearing loss was normal at the time of his separation, and noting that he had significant post-service noise exposure. The Board first addresses the issue of presumptive service connection. The Veteran had normal hearing upon separation, according to his separation examination. The Board acknowledges that the Veteran is competent to identify hearing loss, as well as its onset, but he has not identified hearing loss within the first post-service year. Although he testified that such hearing loss was present during service, he admitted that could not tell it was there for years thereafter. As such, he did not actually identify hearing loss occurring at that time, and his claim, contradicted by his own statements, is not probative of the timing of the onset of the disability. See Layno, 6. Vet. App. at 469-70 (holding that "[c]ompetent testimony is . . . limited to that which the witness has actually observed, and is within the realm of his personal knowledge."). Without evidence of hearing loss within the first post-service year, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309. The Board further finds, upon consideration of all of the evidence of record, that there is insufficient evidence of a nexus between the current audiometric disability and the Veteran's noise exposure. Specifically, the only probative evidence concerning the etiology of the current disability suggests that there is no relationship between the disability and service. Dr. R.P.'s nexus opinion concerning the etiology of the Veteran's hearing loss is conclusory, merely stating that the hearing loss is related to in-service noise exposure. Dr. R.P. fails to explain why such a relationship exists, and fails to address the timing of the onset of the disability, or the effects, if any, of the Veteran's post-service noise exposure on his hearing loss. Without a rationale in support, the opinion is not probative. Nieves-Rodriguez, 22 Vet. App. at 302 (holding that a probative medical opinion must be fully explained and based on sound reasoning). The Board discussed the January 2010 opinion in its February 2011 grant of service connection for tinnitus, and found that the Veteran's lay testimony outweighed the examiner's opinion with regard to that disability. The examination report must be viewed in a different light, however, with respect to hearing loss. The reason the report was discounted with respect to tinnitus was that the Veteran testified that he was able to notice tinnitus during active duty; such is not the case with hearing loss. Although he believes it was present during active duty, he did not notice it at that time, or for a significant time thereafter. The aspects of the June 2010 opinion addressing hearing loss etiology are fully supported, both by accurate facts concerning the history of the Veteran's hearing loss, as well as reliance on scientific evidence concerning the timing of the onset of hearing loss. The Board finds that the opinion is probative of the etiology of the Veteran's hearing loss. Id. In addition to the negative January 2010 etiology opinion, the Board finds that the July 2011 examiner's October 2011 opinion is probative of the matter. Id. The examiner specifically considered the Veteran's claims of in-service noise exposure, post-service noise exposure, as well as the fact that he had normal hearing on separation. The October 2011 opinion indicated that the Veteran's hearing loss was not related to service. The Veteran has repeatedly indicated his own belief that his hearing loss is due to his in-service noise exposure. Unfortunately, he is not competent to identify such an etiological relationship, and his testimony in this regard cannot be the basis upon which service connection may be granted. Jandreau, 492 F.3d at 1376-77. Additionally, the Veteran and his representative have indicated their disagreement with the separation examination findings showing normal hearing, based on their interpretation of the induction audiological examination results. First, neither the Veteran nor his representative is competent to provide an opinion concerning the causes of changes in auditory thresholds during service, as such an opinion would require medical expertise. Id. Perhaps more importantly, the evidence, once the induction examination ASA results are converted to the separation examination ISO/ANSI results, it is evident that there is little, if any, difference between the two. In conclusion, service connection is not warranted. There is no competent evidence suggesting a nexus between the in-service noise exposure and the current disability. Without evidence of onset of the disability within the first post-service year, 38 C.F.R. §§ 3.307, 3.309, or a competent nexus between the in-service noise exposure and the current hearing loss, service connection must be denied. See Holton, 557 F.3d at 1366. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND Following the February 2011 remand, VA obtained (on its own and through the Veteran's submissions), treatment records from the Dallas VA Medical Center from 1980-1981, and from 1986. VA determined that no additional records existed, despite the Veteran's contentions of treatment in the 1960s, 1970s, and other times in the 1980s, and provided notice of that fact to the Veteran. See 38 C.F.R. § 3.159(e). A statement of the Veteran's VA treating physician received at the RO in May 2011 noted that the Veteran was currently receiving mental health treatment at the Dallas VA. Attached to that letter was a print out noting several dates of treatment from April 2011 until July 2011. Those treatment records are not currently associated with the claims file and should be obtained. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159; see Bell v. Derwinski, 2 Vet. App. 611 (1992) (Observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims folder, are in the constructive possession of the Board and must be considered). Although VA obtained a psychiatric examination in June 2011, that examination report is inadequate in two regards. First, the examiner did not have the Veteran's claims file, and thus did not have all relevant records before her at the time of the examination, including records relating to the history of the appellant's psychiatric disability. Further, the examiner failed to provide an opinion as to the etiology of the Veteran's major depressive disorder. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). As such, a new examination is warranted. Additionally, the Board observes that June 2011 examiner indicated that additional testing was likely needed to assess the exact nature of symptoms concerning hearing voices to rule out psychotic features related to major depressive disorder and schizoaffective disorder. The examiner further noted that neurocognitive testing was in order, due to the Veteran's mild to moderate problem with memory, with potential etiologies including qualities of pseudodementia related to depression, organic deficits related to alcohol consumption, or simple aging. It is not apparent that such testing would be relevant to the question of the etiology of the Veteran's current psychiatric disability; the question of the relevance of the testing must be addressed on remand. The Veteran contends that his sleep symptoms are aspects of his psychiatric disability; the treatment records support his contention, inasmuch that he has consistently attributed his trouble sleeping to his psychiatric issues. As such, the claim for service connection for a sleep disorder is inextricably intertwined with the claim for service connection for an acquired psychiatric disorder, and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify all sources of treatment that he has received for his claimed conditions and to provide any releases necessary for VA to secure records of such treatment or evaluation. The RO/AMC should obtain copies of the complete records of all such treatment and evaluation from all identified sources. A specific request should be made for all VA mental health treatment records dated from April 2011. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. Return the claims file to the examiner who conducted the June 2011 examination. The examiner must review the claims file, her June 2011 report, this remand, and any relevant records found in Virtual VA. The ensuing report must indicate that such a review occurred. The examiner must then address the following: (a) The examiner must comment upon the additional assessment and neurocognitive testing she suggested in the June 2011 report and explain whether the testing would be relevant to determining the proper diagnosis and etiology of the current psychiatric disability. If the answer to this question is YES, then the examiner should withhold opinions on questions (b) through (e), infra, until such testing is provided. If the answer to (a) is NO, or once such testing indicated has been completed, the examiner should address the following: (b) the examiner should clarify the current diagnosis. (c) the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current psychiatric disability began during service, is due to an event or injury in service, or is otherwise etiologically related to active duty service. (d) The examiner must also opine as to whether it is at least as likely as not (a 50 percent probability or greater), that the Veteran demonstrated evidence of psychosis or schizoaffective disorder (including prodromal symptomatology) either during service or within the first post-service year. (e) Finally, the examiner should opine as to whether the Veteran's sleep symptoms are at least as likely as not (a 50 percent probability or greater) etiologically related to his psychiatric disability. The examiner must provide a complete rationale for all opinions provided. If any opinion cannot be provided without resort to speculation, the examiner must explain why such an opinion would be speculative. If the June 2011 examiner is unavailable, a similarly qualified mental health provider must provide the requested opinions. Only if a mental health provider deems a new examination necessary to answer the questions presented, should the Veteran be requested to attend another examination. 3. Then, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ HOLLY SEESEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs