Citation Nr: 1340734 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-03 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 2. Entitlement to an initial rating in excess of 10 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of an March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. The Veteran testified before the undersigned at a June 2013 Video Conference hearing. The hearing transcript is of record. The issue of an initial increased rating for PTSD 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. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss for VA compensation purposes. 2. Current left ear hearing loss is related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C.A. § 1110, (West 2002); 38 C.F.R. § 3.303 (2013). 2. Left ear hearing loss was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for service connection for left ear hearing loss. Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim. Those five elements include: 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 (2006). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a December 2008 letter. The Veteran was notified of all elements of the Dingess notice, including the disability- rating and effective-date elements of the claims, in the December 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, VA and private treatment records. Additionally, the Veteran was provided proper VA examinations in August 2010, to evaluate his hearing loss. In sum, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specific to claims for service connection, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, in this case, the Veteran's claims of continuity of symptomatology have been considered and addressed. 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 the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); 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), citing Gilbert, 1 Vet. App. At 54. Analysis The Veteran contends that his currently demonstrated bilateral hearing loss developed as a result of noise exposure in service. Specifically, he claims that while serving on active duty in Vietnam as a military policeman, he was exposed to noise from helicopters, sirens, rockets, explosions, and gunfire, with no hearing protection. Service treatment records show that the Veteran's hearing was normal at the time of his entrance examination, and there is no evidence of complaints, treatment or a diagnosis related to hearing loss during active duty. The records show that the Veteran was given multiple hearing evaluations at the time of his separation, with evidence of some abnormal readings at all levels, but he was ultimately given a normal hearing evaluation. However, the Veteran's DD-214 shows that he served in Vietnam as a military policeman, and the Veteran testified during his June 2013 Video Conference hearing that he was exposed to loud noise from helicopters, explosions, weapons, and other ordnance in this capacity . Thus, the Board finds that the conditions of the Veteran's service are consistent with his reports of noise exposure. 38 U.S.C.A. § 5104(a). With regard to post-service treatment, the Veteran reported that he was seen for hearing loss in the 1980's at the VA Medical Center in New York. However, the Board notes that records of the alleged treatment are not available. Private treatment records dated from 2005 to 2007, show that the Veteran was diagnosed with right and left ear hearing loss. They do not indicate that the hearing loss was related to the Veteran's military service. The Veteran was afforded a VA ear disease examination in response to his claim in August 2010. He reported problems with hearing and difficulty passing hearing tests, which were performed multiple times, at the time of his discharge examination in January 1970. He also reported that he experienced a noticeable decrease in hearing ability during the previous 6 years, and that he went to see his private doctor for left ear "sudden hearing loss." As noted above, during such private treatment from 2005 to 2007, he was diagnosed with bilateral hearing loss . He was fitted with a hearing aid in the left ear in January 2007. The examiner also noted that during a hearing evaluation conducted at the time of his January 1970 separation examination, the initial readings showed abnormal hearing at all levels, 500-4000, but these readings were crossed out and normal ranges were written above and below the deficient numbers. The examiner also noted that there were unidentified, undated audiograms in the record, with abnormal readings. The results of the audiogram showed hearing within normal limits from 500-4000 hertz, and moderate/moderately severe sensorineural hearing loss from 500-4000 hertz on the left. The examiner concluded that there was no evidence of right ear hearing loss, and opined that, as the Veteran's left ear hearing loss was sudden onset, it is less likely related to the Veteran's prior military service, more than 30 years prior. In support of his opinion, he cited findings from the American College of Occupational and Environmental Medicine, that say that previously noise-exposed ears are not more sensitive to future noise exposure and that hearing loss due to noise does not progress (in excess of what would be expected from the addition of age-related threshold shifts) once the exposure to noise is discontinued. He also noted that there is little evidence to address whether noise-induced hearing loss progresses after noise exposure ends or whether noise-induced hearing loss can develop several months or years after the noise exposure has ended. The Veteran was also afforded a VA audiological examination in August 2010. He reported difficulty hearing since service, with a sudden decrease in left ear hearing 5 years prior. He also reiterated his contentions of noise exposure in service from helicopters, rockets, and gunfire, without the use of hearing protection. He denied noise exposure outside of service. He was again diagnosed with normal hearing in the right ear, and moderate/moderately severe sensorineural hearing loss from 500-4000 hertz in the left ear. The examiner opined that, as there are several audiograms with no name and/or no date in the service treatment records, it is unclear whether or not the Veteran had any hearing loss in service, and it is therefore at least as likely as it is not that his current hearing loss is stemming from noise exposure in the military. The level of hearing loss measured during the August 2010 examinations does not meet the requirements for a current disability under VA's regulations codified at 38 C.F.R. § 3.385. While the Veteran is competent to report current right ear hearing loss and a continuity of symptoms since service, it would require medical expertise to say that he has hearing loss that meets the specific thresholds of 38 C.F.R. § 3.385. See 38 C.F.R. § 4.85(a) (2013) (requiring that examinations for hearing impairment for VA purposes be conducted by state licensed audiologists). There is no evidence that the Veteran possesses such expertise. Hence, he would not be competent to say that his right ear hearing loss met the thresholds of 38 C.F.R. § 3.385. Indeed, he has not made such a contention. Accordingly, the Board finds that as the weight of the evidence is against a finding that there is a current right ear hearing loss disability for VA compensation purposes, this claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002). With regard to his diagnosed left ear hearing loss, the Board notes that hearing loss is manifested by symptoms that the Veteran is competent to report. The Veteran has consistently reported that he was exposed to noise from helicopters, sirens, rockets, explosions, and weapons during service. Therefore, the Board finds his reports credible. He has also provided competent evidence of a continuity of symptomatology, and a VA examiner has also provided a medical opinion linking his current left ear hearing loss to service. The examiner considered an accurate history in providing this opinion. The Board also notes that the evidence of record shows that the Veteran's only reported risk for hearing loss was trauma from noise exposure, which only occurred during active duty. There is evidence against the claim, inasmuch as the contemporaneous record does not document left ear hearing loss for many years after active duty, and the August 2010 ear disease examiner provided an opinion against the claim. The evidence is, however, in at least equipoise. Resolving reasonable doubt in the appellant's favor, the claim is granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is granted. REMAND The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In a May 2011 rating decision, the RO granted service connection for PTSD. A 10 percent rating was assigned, effective January 31, 2011. The rating was based on the findings made upon VA psychiatric examination in March 2011. Since his March 2011 examination, the Veteran has reported symptoms that suggest that his PTSD have worsened. His reported symptoms include anxiety, flashbacks several times per week, nightmares several times per week and night sweats, sleep deprivation, inability to focus, avoidance behavior, unprovoked irritability and agitation, uncontrollable rage, suicidal ideation, and visual and auditory hallucinations. See June 2013 Video Conference hearing transcript and March 2013 statement from the Veteran. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the evidence of increased symptomatology, a new VA examination is warranted to determine the current severity of the Veteran's PTSD. The appellant is advised that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. See 38 C.F.R. §§ 3.158 and 3.655 (2013). The Board also notes that during his Video Conference hearing, the Veteran reported that he had been receiving treatment at the VA Outpatient Clinic in Stanford, Connecticut since November 2011, and at the Danbury Vet Center in Connecticut. Records of this treatment are not currently associated with the claims file or the Virtual VA e-folder. The procurement of potentially pertinent medical records referenced by the Veteran is required. As it appears that there may be available VA medical records that are not presently associated with the claims folder, a remand is required. See 38 C.F.R. § 3.159(c)(2). The provisions of 38 C.F.R. § 3.159(c) provide that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. If VA is unable to obtain such records, VA must provide the claimant with oral or written notice of that fact. The notice must contain various information, including an explanation of the efforts VA made to obtain the records and a description of any further action VA will take regarding the claim. 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected PTSD. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO should also obtain any outstanding VA medical records. As already noted, the Veteran asserts that there are records of treatment at the VA Outpatient Clinic in Stanford, Connecticut, and the Vet Center in Danbury, Connecticut, which are not of record. 2. Then, afford the Veteran a VA examination to determine the current severity of his service connected PTSD. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. The examiner should obtain a full history of the Veteran's relevant symptomatology and assess the current severity of his psychiatric disorder in accordance with 38 C.F.R. § 4.125 and the DSM-IV. All tests, studies, or evaluations deemed necessary should be performed, and the results should be reported in detail. 3. When the development requested has been completed, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case. The case should be returned to the Board, if otherwise in order. 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 Supp. 2013). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs