Citation Nr: 1400639 Decision Date: 01/08/14 Archive Date: 01/23/14 DOCKET NO. 11-27 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). 4. Entitlement to service connection for a right leg disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1967 to February 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's electronic files on the "Virtual VA" and VBMS systems to insure a total review of the evidence. Although the Veteran indicated in his notice of disagreement that he intended to appeal all issues raised in the statement of the case, he limited the scope in his perfected appeal to the Board specifically to service connection claims for bilateral hearing loss, tinnitus, a right leg condition, and post-traumatic stress disorder. 38 C.F.R. § 20.202. The limited scope of his appeal was reiterated in his representative's August 2012 informal hearing presentation. At his October 2012 Travel Board hearing, the Veteran wanted the Board to consider issues he declined to appeal, namely entitlement to service connection for coronary artery disease and service connection for diabetes mellitus. In this regard, it is important for the Veteran to understand that he has 60 days from the date the statement of the case is mailed or within the remainder, if any, of the one-year period from the date of the letter notifying the veteran of the action that he appealed. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.1103. If an appeal of a decision is not perfected, the decision becomes final absent a showing of good cause. Id. The RO issued the Veteran a statement of the case and subsequent supplemental statement of the case regarding his service connection claims on September 24, 2011 and August 16, 2012, respectively. While the Veteran had ample opportunity to submit a written statement to reinstitute consideration of those two service connection claims to his appeal, he never indicated a willingness to do so in writing at any time after submission of the Form 9 and prior to the September 2012 certification of the Veteran's appeal. Instead, he reinforced his desire to appeal the four issues currently before the Board. Neither the Veteran nor his representative presented evidence of good cause for any delay. Therefore, the Board limits the Veteran's appeal to the issues certified to the Board. The Board notes that this action does not preclude the Veteran from submitting new and material evidence to reopen these claims in the future. The issue of entitlement to service connection for a right leg disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office via the Appeals Management Center (AMC) located in Washington, DC. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma during service. 2. The medical evidence indicates his current bilateral hearing loss and tinnitus are attributable to that acoustic trauma during service. 3. The Veteran has PTSD due to fear of hostile military activity consistent with the type, place, and circumstance of his Vietnam service. CONCLUSIONS OF LAW 1. Resolving any reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2013) 2. Resolving any reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 3. Resolving any reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. 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). In addition, for certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) a service-connected disability; (2) an additional disability; and (3) that the additional disability was either (a) caused by or (b) aggravated by the service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Service connection claims involving psychiatric disorders such as PTSD differ from the general and secondary service connection rules. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a nexus (or link), established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The in-service stressor or traumatic event must involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. See DSM-IV § 309.81 (4th ed. 1994). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. Previously, if it was determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, effective July 13, 2010, after the RO's most recent adjudication of this claim, the VA amended its rules regarding necessary supporting evidence when the in-service stressor is related to "fear of hostile military or terrorist activity." 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, the amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor-provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. Id. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 12, 2010, but have not been decided by the Board as of July 12, 2010. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Furthermore, although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Bilateral Hearing Loss Pursuant to VA regulations, hearing loss 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. At the outset, the Board finds that the Veteran has a current hearing loss disability as defined by 38 C.F.R. § 3.385 based on November 2011 audiogram results indicating bilateral hearing loss. The audiogram revealed puretone thresholds of 35, 60, 55, 70, and 75 decibels in the right ear and 25, 45, 45, 65 and 65 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively. His speech recognition scores under the Maryland CNC Test were 66 percent in the right ear and 80 percent in the left ear. With regard to an in service incurrence, the Board finds that the Veteran was exposed to acoustic trauma while working on the flight line. The Veteran's DD Form 214 shows that his Military Occupational Specialty (MOS) was as a petroleum supply specialist. The Veteran describes his duties as refueling helicopters. In addition to the significant noise experienced from the helicopter engines as they took off and landed, the Veteran encountered noise from nearby artillery and rocket fire. The Board finds his contentions regarding military noise exposure to be credible based on his service in a combat zone during the Vietnam War as evidenced by receipt of the Vietnam Service Medal and the nature of his MOS. The dispositive issue in this case is whether the Veteran's current bilateral hearing loss disability is related to the in service acoustic trauma. In evaluating this issue, the Board considered the sole audiological evaluation of prepared by a VA audiologist in November 2011. The VA audiologist opined that the Veteran's current hearing loss was not caused by or the result of noise exposure in the military. The examiner based this opinion on the Veteran's normal hearing on enlistment and separation examinations. The VA audiologist notes that the Veteran's hearing loss is likely a result of post-military noise exposure, but gives no specifics as to the post-military noise exposure. Per the record, the Veteran worked in a variety of maintenance jobs after separation, none of which can be connected to noise exposure equivalent to the level endured while in service. With the evidence of record in relative equipoise, the Board grants service connection for hearing loss resolving any benefit of the doubt in favor of the Veteran. Tinnitus The Board grants service connection for tinnitus, complained of at the November 2011 VA audiological exam, as secondary to the Veteran's now service connected bilateral hearing loss. As noted above, service connection on a secondary basis requires evidence sufficient to show (1) a service-connected disability; (2) an additional disability; and (3) that the additional disability was either (a) caused by or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310(a). With the Board granting service connection for bilateral hearing loss and the VA audiologist diagnosing the Veteran with tinnitus, the Board turns to the dispositive issue as to whether the additional disability was either cause or aggravated by the service-connected disability. The VA audiologist opined that the Veteran's tinnitus was "at least as likely" related to the Veteran's bilateral hearing loss. With this opinion disposing of the final element under a secondary theory of service connection, a grant of service connection for tinnitus is warranted. Post-Traumatic Stress Disorder The Veteran contends that he feared for his life while in Vietnam. He reports taking on artillery and rocket fire while working on the flight line as a petroleum supply specialist, which resulted in the development of PTSD. With the evidence of record in relative equipoise, the Board finds in favor of the Veteran's service connection claim for PTSD. As noted above, service connection for PTSD claims under a theory of fear of military or terrorist activity, as contended by the Veteran, differs from the general service connection standard in that it requires (1) medical evidence from a VA psychiatrist or psychologist establishing a diagnosis of the disability, (2) evidence of an in-service stressor, and (3) a nexus (or link), established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). The Veteran is currently diagnosed with PTSD. The diagnosis was made by a VA staff psychiatrist during a May 2008 mental health assessment. The Board finds the Veteran's lay statements competent and credible with regard to the in-service stressor irrespective of their vagueness because of their general consistency with his MOS and the known circumstances faced by the Veteran during the Vietnam War. In finding the Veteran's statements competent and credible, the Board acknowledges the Veteran's memory issue related to dementia, which has caused problems in Veteran's recollection of the in-service stressor. Despite slight variances in the Veteran's contentions, he has remained consistent with the overall content related to in-service stressor. The Board now turns to the dispositive issue of nexus, which a direct link was provided for by the May 2008 VA staff psychiatrist, who referred to the Veteran's PTSD as "combat-related." In making a finding of nexus, the Board recognizes the October 2011 PTSD examination, which dismissed the previous PTSD diagnosis due to the Veteran's inability to discuss his stressor in detail. In finding the medical opinions in relative equipoise, all reasonable doubt is resolved in the Veteran's favor in the grant of service connection for PTSD. In this regard, it is important to note that the nature and extent of the PTSD is not before the Board at this time. In evaluating the disability, care should be taken to not take into consideration the problem the Veteran has with any nonservice connected disability, including dementia. VA's Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue herein decided. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The information contained in October 2008 and November 2008 letters satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The VA met its duty to assist the Veteran by obtaining all available relevant evidence to the Veteran's claim. To that end, the VA obtained the Veteran's service personnel records, service treatment records, and post-service treatment records. Additionally, the Veteran was afforded a VA audiological examination November 2011 and an initial PTSD examination in October 2011. The examiners, VA medical professionals, performed their examinations and provided the Board with sufficient information to render a decision regarding the Veteran's service connection claims when reviewed with the other competent evidence of record. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Since the Veteran did not make the RO or Board aware of any other relevant evidence that would need to be obtained, the Board finds that no further development is required. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for post-traumatic stress disorder is granted. REMAND The Veteran testified at his Travel Board to a right leg skin disability, which he referred to as 'jungle rot' with related pain. Although the record is scant concerning this disorder, the Board finds the Veteran's allegations of a right leg disability combined with current medical evidence of discoloration and peeling skin of the lower extremities warrant an examination to ascertain if the Veteran has such a disability. Since the Veteran's allegations indicate that both legs were exposed, the Board expands this examination to both legs. If the examiner determines that a disability of both or either legs exists, then the examiner should undertake additional examination to assess the nature and severity of the disability and to provide an opinion regarding service connection. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to examine his lower extremities. The claims folder should be made available to the examiner for review before the examination. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. Upon a review of the entire claims file and examination of the Veteran, the examiner should respond to the following: Is it as least as likely as not (50 percent probability or greater) that the Veteran has a disability of one or both legs? If so, is it at least as likely as not (50 percent probability or greater) that the Veteran's leg disability is caused by or is otherwise directly related to an event or injury during military service? 2. Thereafter, the RO/AMC must readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the Veteran and representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655. 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). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs