Citation Nr: 1339130 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 11-30 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial rating higher than 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from May 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in July 2012. A copy of the hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. Bilateral hearing loss preexisted service and was not aggravated by service. 2. Tinnitus is etiologically related to service. 3. The Veteran's PTSD is manifested by mild memory loss, sleep impairment, hyperarousal, anxiety, and some occupational impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303 (2013). 3. The criteria for an initial 30 percent rating, but not higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a February 2010 letter prior to the initial adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), he was also issued a November 2011 statement of the case (SOC) which contained the criteria for establishing a higher rating for his PTSD. Overton v. Nicholson, 20 Vet. App. 427 (2006). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; provide opinions regarding the etiology of the Veteran's hearing loss and tinnitus; and record the relevant findings for rating the Veteran's PTSD. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at a Board videoconference hearing. The hearing was adequate as the VLJ who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2013). If a claimant seeks service connection for a preexisting disorder noted upon entry into service, he has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn at 235 n. 6; 38 U.S.C. § 1153. A. Hearing Loss A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 C.F.R. § U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Veteran underwent a pre-induction examination in June 1966. Prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left in each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. During the Veteran's June 1966 examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 0 (10) - 45 (50) LEFT 0 (15) 0 (10) 0 (10) - 40 (45) These findings are consistent with hearing loss for VA purposes. See 38 C.F.R. § 3.385. He was assigned a physical profile of 2 for his hearing. Therefore, the Veteran had preexisting bilateral hearing loss at the time of his enlistment. Because the Veteran's hearing loss was noted at entry, he is not considered sound at entry with regard to his left ear hearing acuity, and service connection may only be granted for hearing loss based on aggravation due to an in-service disease, injury, or event, or a permanent increase during service. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306(b). A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; § 3.306(a); Townsend v. Derwinski, 1 Vet. App. 408 (1991). Thus, there is a presumption of aggravation when disability from a pre-existing injury or disease increases during service. See id. When the presumption of aggravation applies, it may only be rebutted by clear and unmistakable (obvious or manifest) evidence, such as medical evidence showing that any increase in disability was due to the natural progress of the preexisting condition. 38 C.F.R. § 3.306(b). A flare-up of symptoms, in the absence of an increase in the underlying disability, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); see also Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation). Further, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). On the Veteran's December 1968 separation examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 - 5 LEFT 0 0 0 - 0 The Veteran was assigned a physical profile of 1 for his hearing. The Veteran has taken issue with the audiological findings from service. In his July 2012 hearing, the Veteran testified that while he worked at Cessna for about a year before joining the military, he was not exposed to any significant occupational noise. His military duties, however, exposed him to significant noise without the benefit of hearing protection. He also stated that his separation examination was very cursory and did not include a proper hearing test. The Board notes that he served as a helicopter mechanic in service, and therefore his military noise exposure is conceded. However, the Veteran has not demonstrated any specialized knowledge or expertise to indicate that he is capable of offering competent medical opinions. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing and evaluating hearing loss through specific puretone thresholds, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board cannot disregard the medical evidence of a preexisting hearing loss based only on the Veteran's lay testimony. The preponderance of the evidence shows that the Veteran's hearing loss did not increase during active service. It is apparent from the audiometric findings above that puretone thresholds decreased in all frequencies between the Veteran's pre-induction and separation examinations. Moreover, the Veteran underwent a VA examination in March 2010. The examiner reviewed the claims file, obtained a history from the Veteran, and conducted an examination. Based on this information, the examiner concluded that preexisting hearing loss was less likely than not aggravated by service. She stated that while hearing loss does not usually improve by 40 dB like it did between the Veteran's pre-induction and separation examinations, the evidence did show hearing loss prior to entering service, and the other evidence available for review did not show any worsening in service. Notably, the Veteran submitted a May 2010 opinion from his private physician, Dr. E., who stated that the Veteran had sensorineural hearing loss that was consistent with noise exposure. While this physician's statements address the etiology of hearing loss, they do not address the pertinent question in this case of whether the Veteran's preexisting hearing loss underwent an increase in service, and therefore this opinion holds little probative value. In addition, because the Veteran has argued that he did not have a preexisting condition, he has not offered any statements of his own that his hearing worsened during service. Service treatment records also contain no complaints or treatment for hearing loss. Medical history reports from February 1968 and December 1968 show the Veteran denied any hearing loss. The Board has also considered the Veteran's testimony that his separation examination was cursory and did not include a proper hearing test. However, puretone thresholds were recorded at the time of separation and must be weighed as evidence. Even if they were set aside, the Veteran still has not otherwise demonstrated that his preexisting hearing loss underwent an increase in service. Accordingly, because there was no permanent increase of hearing loss during service, but rather ultimately an improvement of hearing, the presumption of aggravation does not apply. See 38 U.S.C.A. § 1153; § 3.306(a). Therefore, service connection is not warranted. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306(b); see also Shedden, 381 F.3d at 1166-67. In summary, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a hearing loss disability must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. B. Tinnitus The Veteran's March 2010 VA examination and private records reflect a diagnosis of bilateral tinnitus. Therefore, element (1) for service connection has been met. In addition, as discussed above, military noise exposure is conceded. Therefore, element (2) has also been met. Unlike hearing loss, tinnitus was not noted at the time of the Veteran's pre-induction examination, and there is no evidence to otherwise suggest that tinnitus preexisted service. Therefore, the pertinent question is whether element (3), a causal relationship between noise exposure in service and current tinnitus, is met. The May 2010 private opinion from Dr. E. clarified that, although the Veteran had previously denied tinnitus during a visit several years ago, the question regarding tinnitus was not phrased well at the time, and that the Veteran in fact had tinnitus since service. The March 2010 VA examiner was unable to comment on the etiology of tinnitus without resorting to speculation, noting that hearing loss preexisted service but that there were no complaints of tinnitus in service. During the examination, the Veteran had reported that his tinnitus began after exposure to loud noise in service. During his July 2012 hearing, the Veteran testified that he could not recall the exact onset date of his tinnitus, but that he had experienced it for a very long time. The Board is cognizant that there is conflicting evidence of record concerning the onset of the Veteran's tinnitus symptoms. The Veteran has reported a history of tinnitus dating back to service; however, his service records reflect no complaints of tinnitus and a denial of any ear trouble in December 1968, and by November 2003 private records which reflect no auditory complaints. See AZ v. Shinseki, No. 2012-7046 (Fed. Cir. Sept. 30, 2013); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Resolving doubt in the Veteran's favor, the Board accepts his statements as to experiencing tinnitus since service to be credible. The Veteran's statements, in addition to the May 2010 opinion from Dr. E. that tinnitus had existed since service, weigh in favor of the claim. Therefore, service connection for tinnitus is warranted. III. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran is currently assigned a 10 percent rating under Diagnostic Code 9411. The evidence indicates that an initial 30 percent rating is warranted. A 30 percent rating is assigned where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. In this case, a March 2010 VA examination noted the Veteran had intermittent anxiety, sleep disturbances, difficulty remembering names and tasks, difficulty with concentration, and some reexperiencing and hyperarousal symptoms. VA records from December 2010 also show the Veteran had anxiety attacks, including at work. In support of his claim, the Veteran also submitted disciplinary reports from his employer which noted that he had verbally abused some of the employees he supervised. Overall, these findings are consistent with the criteria for the 30 percent rating. His Global Assessment of Functioning (GAF) score during the examination was 75, indicating transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. These findings are also in line with the assigned 30 percent rating, and consistent with the Veteran's symptoms. However, a higher 50 percent rating is not appropriate. A 50 percent rating is warranted if the evidence establishes there is occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. In this case, the March 2010 VA examination noted that the Veteran had an appropriate affect. There were no speech abnormalities. There was no impairment of long-term memory. Thought processes were normal. Although he reported periods of anxiety and nervousness, he was "happy most of the time." He reported that his mood and energy level were 7/10, and that he had fairly good motivation. He engaged in activities such as woodworking and home remodeling, and took weekend trips with his wife. He had additional friends in the area, but did not see them as much now that he was aging. He was appropriately sad or upset when discussing certain distressing topics such as traumatic events in service or the death of his son, but was otherwise pleasant and cooperative. Although he endorsed some homicidal ideation, this was in response to a specific incident at work 3 years ago involving people whom the Veteran considered "bullies" and who had threatened to shoot him. There was no indication of any further homicidal ideation, or any suicidal ideation, delusions, or hallucinations. These findings do not reflect an overall level of occupational and social impairment consistent with the 50 percent rating. The Veteran is employed full time. The Veteran also testified at his July 2012 hearing, and submitted written statements from himself and his wife in November 2010. In adjudicating a claim the Board must assess the competence and credibility of the Veteran and other lay witnesses. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran and his wife are competent to give evidence about what the observe or experience. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds them to be credible in their reports of the symptoms he experiences. However, their accounts of his symptomatology, which include complaints of sleep disturbances, memory loss, and periods of emotional distance with his family, describe a level of impairment consistent with the assigned 30 percent rating. In evaluating the Veteran's claims for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected condition in considering if the Veteran is entitled to an extraschedular rating. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. That is, the Veteran's symptoms of sleep disturbance, hyperarousal, memory loss, and anxiety are all contemplated under the rating schedule. There is no indication that the Veteran's PTSD results in any symptoms that fall so far outside the rating schedule as to render it inadequate. Even if the Board were to find that step one of Thun had been satisfied, extraschedular referral would still not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc). The Veteran's PTSD does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1). The Veteran has not been hospitalized for this condition. As to employment, the Veteran's occasional difficulties with work and decreased efficiency are expressly contemplated by the rating schedule. He is employed full time. There is no indication that his PTSD results in any interference with employment beyond that which is inherent in the assigned 30 percent rating. Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. ORDER Service connection for bilateral hearing is denied. Service connection for tinnitus is granted. An initial 30 percent rating, but not higher, for PTSD is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs