Citation Nr: 1336893 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 09-03 078 ) 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, to include as secondary to service-connected jaw disability. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 3. Whether the reduction in rating for the Veteran's service-connected jaw disability from 20 percent to 10 percent, effective February 1, 2013, was proper. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The issue of service connection for tinnitus, to include as secondary service-connected jaw disability, has been raised by the Veteran's representative, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is referred to the AOJ for appropriate action. The Veteran had active duty service from February 1974 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in Nashville, Tennessee. A transcript of that hearing is in the claims file. In a decision dated in November 2012, the Board granted the Veteran's request to reopen a claim for service connection for an acquired psychiatric disorder, to include PTSD, and then remanded the issues of service connection for hearing loss and service connection for an acquired psychiatric disorder, to include PTSD, for additional evidentiary development, including provision to the Veteran of a VA audiology examination and a VA psychiatric examination. The requested audiology examination having been done and the requested information provided, no further development regarding the issue of service connection for hearing loss is needed. The issue of service connection for an acquired psychiatric disorder, to include PTSD; and the issue of the propriety of the rating reduction for the Veteran's service-connected jaw disability from 20 percent to 10 percent; are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The Veteran's bilateral hearing acuity is not within the definition of a hearing loss disability for VA compensation purposes. CONCLUSION OF LAW A hearing loss disability as defined by VA regulation is not found. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002); 38 C.F.R. § 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements were accomplished in a letter dated in July 2007. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The Veteran was apprised of the information and evidence needed to substantiate his claim of service connection (including the information and evidence to be submitted by him and the information and evidence to be obtained by VA); of how disability evaluations and effective dates are assigned; and of the type of evidence that impacts those determinations. He was also apprised of the criteria for service connection on a secondary basis. As regards VA's duty to assist, evidence necessary for resolution of this appeal has been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, and VA treatment records. The Veteran was also accorded a VA audiology examination in May 2013, during which the examiner reviewed the claims file, discussed the Veteran's history and symptoms with the Veteran, and conducted requisite testing; and the report of this examination is sufficiently detailed as to permit fair and equitable consideration of the merits of this matter. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that the VA audiology evidence is adequate and VA has fulfilled its duty to assist. In addition to the foregoing, in March 2011 the Veteran testified before the undersigned Acting Veterans Law Judge. During that hearing the Acting Veterans Law Judge explained the issue and asked the Veteran questions to ascertain the nature of any in-service events and symptoms. The Acting Veterans Law Judge also asked questions to draw out the current nature of the Veteran's complaints, and the hearing focused on the elements necessary to substantiate his claim. The Veteran has not suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claim was identified by the Veteran and has been obtained. Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). As noted above, the issue of service connection for bilateral hearing loss was remanded in November 2012. To the extent necessary the AMC has complied with the Board's remand directives regarding the issue of service connection for bilateral hearing loss. Such development revealed that a current disability is not present as determined by VA examination. In conclusion, the Board finds that the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Accordingly, any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran; and does not prohibit consideration of this matter on the merits. See Pelegrini, 18 Vet. App. at 121; Conway, 353 F.3d. at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hearing loss if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (2013). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. C.F.R. § 3.310(a). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006 and dictate that service connection is not to be awarded based on an aggravation basis unless a pre-aggravation baseline level of disability is first established. Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. Service connection may only be granted if claimed hearing loss is of sufficient severity to be considered a disability for VA purposes. Whether the Veteran meets the criteria for service connection for a hearing disability loss is based on mechanical application of results of audiometric examination to the definition provided by the law. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran's lay statements regarding hearing acuity are credible evidence that the Veteran perceives a subjective hearing loss, but the Veteran's lay statements are not competent evidence which establishes that the Veteran's hearing acuity meets the definition of hearing loss disability set by law. See, e.g, Lendenman v. Principi, 3 Vet. App. 345 (1992). On VA audiology examination in May 2013, the Veteran complained of occasional otalgia and aural pressure in the left ear. Testing found as follows: Hertz 500 1000 2000 3000 4000 Right ear 20 25 25 20 20 Left ear 20 20 30 25 25 Speech recognition score was 96 percent in each ear. Diagnosis was "normal hearing." The Veteran's bilateral hearing acuity has not met VA criteria for a finding of disability at any time during the appeal period. According to the medical evidence of record, left and right ear hearing acuity was well within normal limits during post-service testing in May 2013. As there is no evidence of a current hearing loss disability as defined by VA regulation, service connection for hearing loss is not warranted. The Board recognizes that the Veteran is competent to describe his perceived symptoms of hearing loss. However, there is no indication that the Veteran has any specialized training in diagnosing audiological disorders or determining their etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Accordingly, a hearing loss disability as defined under 38 C.F.R. § 3.385 is not a simple medical condition that the Veteran as a lay person is competent to identify. Where, as here, the determinative question involves a medical diagnosis, not capable of lay observation or the claimed disability is not a simple medical condition, competent medical evidence is required to substantiate the claim. And according to the competent medical evidence of record, neither the Veteran's right or left ear hearing acuity has met the criteria for hearing loss disability as set out by 38 C.F.R. § 3.385 at any time during the appeal period. Congress has specifically limited entitlement to service connection to cases where there is a current disability. As the Veteran's hearing thresholds do not meet VA's criteria for a finding of disability, the claim must be denied. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). ORDER Service connection for bilateral hearing loss is denied. REMAND With regard to the issue of service connection for an acquired psychiatric disorder to include PTSD, as the Board noted in its November 2012 remand, examples of behavior changes that may constitute credible evidence of military sexual trauma include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes; and that VA may submit any evidence that it receives to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. The Veteran has argued that there is evidence of behavior changes as a result of the sexual assault as well as other evidence to document the event. He argues that he was diagnosed with gonorrhea after the attack. He said he went absent without leave (AWOL) and that his performance ratings went down. In its November 2012 remand the Board requested that the claims file be sent for an opinion by an appropriate mental health professional as to whether the evidence of record indicates that a personal assault occurred during the Veteran's active duty service. This was not done. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). Remand for the requested opinion is warranted. Since the claims file is being returned, and as there is evidence that the Veteran underwent a mental hygiene evaluation in March 2006, a request should be made for all of this veteran's in-service mental health/hygiene records, which are stored separately from other service treatment records. See M21-1 MR Part III, Subpart IV. 4.H.27.e. Additionally, and as regards the Veteran's allegation of contracting gonorrhea during his in-service incarceration, a request should also be made for all of the Veteran's treatment records compiled during his period(s) of confinement in the Fort Campbell, Kentucky, stockade, from May 28, 1975, through February 1, 1976. In addition to the foregoing, the Veteran's active duty Performance Appraisal Records are not in the claims file. The Board further notes that a "report of medical examination" referred to by a military officer in a May, 1976, Expeditious Discharge record is also not in the claims file. This is significant since the reason for the proposed discharge was "inability to adapt socially or emotionally to the U.S. Army." As this case involves a claim of military sexual trauma, a request should be made for a complete copy of the Veteran's Official Military Personnel File. 38 C.F.R. § 3.159(c)(2). All VA treatment records dated after November 2009 should also be associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, in a rating decision dated November 5, 2012, the RO reduced the rating for the Veteran's service-connected right mandible fracture residuals disability from 20 percent to 10 percent effective February 1, 2013. In correspondence dated November 21, 2012, the Veteran stated that he disagreed with the reduction [see VBMS file]; and in a letter to the Veteran dated November 27, 2012, the RO acknowledged that the Veteran had filed a notice of disagreement. Unfortunately, no further action has been taken by the RO with regard to the Veteran's timely filed notice of disagreement. See 38 C.F.R. § 19.29 (regarding issuance of Statement of the Case). In accordance with Manlincon v. West, remand for issuance of a Statement of the Case, which has not been done, is warranted. Manlincon v. West, 12 Vet. App. 238 (1999) (where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case). Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran a statement of the case, in compliance with 38 C.F.R. § 19.29, on the issue of the reduction in rating from 20 percent to 10 percent for the Veteran's right mandible fracture residuals disability; as effectuated in the November 5, 2012, rating decision. The Veteran must be informed that in order to perfect an appeal on the issue, he must timely file a substantive appeal, following the issuance of the statement of the case. 2. Ensure that all VA treatment records dated after November 2009 have been associated with the claims file, either physically or electronically. 3. As it is understood that in-service mental health/hygiene records are stored separately from other service treatment records (see M21-1 MR Part III, Subpart IV. 4.H.27.e.), contact the appropriate department/agency for a copy of the Veteran's in-service mental hygiene/health clinic records, particularly as would have been generated in or around March, 1976, during the Veteran's service with the 24th AG Company at Fort Stewart, Georgia. 4. Request a complete copy of the Veteran's Official Military Personnel File; or, alternatively, request all of the Veteran's in-service Performance Appraisal records, and all records, particularly medical records, related to the May 20, 1976, recommendation for discharge. Associate these records with the claims file. 5. After completion of all of the above, arrange for the claims file (to include any relevant documents in the Veteran's electronic claims file in Virtual VA) to be reviewed by an appropriate mental health professional for an opinion as to whether there is evidence of behavioral changes indicating that a personal assault occurred. A detailed rationale for all opinions expressed should be furnished. If an opinion cannot be provided without resort to mere speculation, this must be specifically stated and an explanation must be provided as to why the opinion cannot be provided without resort to mere speculation. 6. After completion of steps 3 through 5, review the file and make a formal determination with respect to whether a claimed stressor has been verified. In reaching this determination, address any credibility questions raised by the record. 7. After completion of step 3, return the claims file to the June 2013 psychiatric examiner for an opinion as to whether the Veteran's schizophrenia, paranoid type, or his psychotic disorder, not otherwise specified, began during service or in the year after service, or is otherwise related to his period of service. 8. After completion of all of the above and any other development deemed necessary, readjudicate the claim for an acquired psychiatric disorder, to include PTSD. If the claim remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond before returning the case to the Board. The Veteran and his representative have 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). ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs