Citation Nr: 1544399	
Decision Date: 10/19/15    Archive Date: 10/29/15

DOCKET NO.  11-27 706	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for tinnitus.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Lisa A. Lee, Attorney




ATTORNEY FOR THE BOARD

C.S. De Leo


INTRODUCTION

The Veteran served on active duty from September 1963 to July 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The issues of a higher initial rating for PTSD, entitlement to a TDIU due to service-connected PTSD, and entitlement to service connection for tinnitus are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required. 


FINDING OF FACT

The Veteran as likely as not has bilateral hearing loss that is attributable to his active military service.





CONCLUSION OF LAW

The Veteran has bilateral hearing loss that is the result of disease or injury incurred during active military service.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

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 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Here, VA's duty to notify was satisfied through a notice letter dated in November 2010, that informed the Veteran of his duty and VA's duty for obtaining evidence and the process by which disability ratings and effective dates are assigned.  

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Here, service treatment records (STRs), post-service treatment records, and the Veteran's lay statements have been obtained and associated with the claims file.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  

A VA medical opinion was also obtained in October 2014 with respect to the Veteran's service connection claim for bilateral hearing loss.  The Board finds the medical opinion contains sufficient evidence to decide the claim for entitlement to service connection for bilateral hearing loss.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination or opinion, it must provide an adequate one.)  Thus, VA has met its duty to assist as to the claim.

II.  Analysis

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Generally, service connection requires:  (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999).  Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if it becomes manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014).

If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after separation is required in order to grant service connection.  38 C.F.R. §§ 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (quoting 38 C.F.R. § 3.303(b)).  Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).  

As the first evidence of sensorineural hearing loss was not shown in service or within one year of service separation, service connection for hearing loss cannot be granted on a presumptive basis.  38 C.F.R. § 3.303, 3.307, 3.309.  However, service connection for hearing loss can still be established if medical evidence shows that a current impaired hearing disability is actually due to incidents during service.  Hensley v. Brown, 5 Vet. App. 155 (1993).

Although medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (in some cases, lay evidence will be competent and credible evidence of etiology).  

With regard to the medical opinions of record, where the Board is presented with conflicting medical evidence, it may favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).  In this regard, the Board notes that courts have, within the context of VA claims, specifically rejected the "treating physician rule."  See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001).  Instead, the Court has held that the Board must determine how much weight is to be attached to each medical opinion of record.  See Guerrieri v. Brown, 4 Vet. App. 467 (1993).  Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994). 

Service Connection for Bilateral Hearing Loss 

A hearing loss disability is defined with regard to audiometric testing involving pure tone frequency thresholds and speech discrimination criteria.  38 C.F.R.           § 3.385.  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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.  Id.  The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

The Veteran contends that he has bilateral hearing loss that is the result of acoustic noise trauma.  Specifically, the Veteran asserts that during active military service his military occupational specialty (MOS) was a helicopter pilot with the 129th Assault Helicopter Company while serving in the Republic of Vietnam.  See October 2010 VA Form 21-4138.  The Board finds credible the Veteran's account of noise exposure in service, as it is consistent with his duties as a helicopter pilot.

The Veteran's July 1963 entrance examination reflects normal hearing.  He received a normal clinical evaluation of his ears and denied having any ear trouble.  A March 1968 STR shows that the Veteran presented with complaints of pain and a blocked left ear.  An August 1968 separation examination also reflects normal hearing.  He again received a normal clinical evaluation of his ears and denied having any ear trouble.  

In an October 2012 rating decision the RO denied service connection for bilateral hearing loss.  In a subsequent November 2014 Statement of the Case, the RO conceded exposure to excessive noise as associated with the Veteran's military service.

Post-service treatment records consist of a September 2010 private audiological examination performed by K.T., M.D.  Upon examination the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
40
55
60
LEFT
35
35
50
60
55

The clinician report reflects that the Veteran provided a history of military service and noise exposure.  Dr. K.T. diagnosed bilateral sensorineural hearing loss and opined that "the sensory-neural hearing may [be] cause[d] by many factors but service noise exposure may be one of [the] reason[s]."  Speech audiometry was not recorded.

Relevant evidence of record also includes a May 2012 private audiological examination performed by Dr. S.S.  Upon examination, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
40
45
55
LEFT
30
35
50
55
80

Although it does not appear that Dr. K.T. or Dr. S.S. had access to the Veteran's STRs, the Board points out that claims file review is not a requirement for medical opinions, and that a medical opinion may not be discounted solely because the opining clinician did not conduct such a review.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

Post-service medical evidence concerning this issue also includes an October 2014 VA medical opinion.  Physical examination of the Veteran was not conducted therefore, pure tone thresholds, in decibels, were not recorded.  The reviewer's report shows that the Veteran's claims folder was reviewed.  The clinician incorrectly noted that the Veteran's STRs were silent of any complaints or treatment for bilateral hearing loss.  See March 1968 STR.  The examiner opined that it is less likely than not that the Veteran's hearing loss was caused by or a result of military noise exposure, citing to medical literature from The Institute of Medicine (2006), which provides that "based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure [and] there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure."  The examiner concluded "[g]iven that there is no evidence that hearing loss or significant threshold changes occurred during military service, there is no basis on which to conclude that the current hearing loss was caused by or the result of military service, to include military noise exposure."

As noted above, the competent medical evidence has established that the Veteran carries a current diagnosis of bilateral hearing loss.  The Board acknowledges that the October 2014 VA medical opinion found it less likely than not that the Veteran's hearing loss was etiologically linked to military service.  However, the Board finds that this medical opinion did not give due consideration to the Veteran's competent account of the onset of symptoms in service and their continuity thereafter, particularly in light of the fact that lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau, 492 F.3d at 1377 n.4.  The general principle that acoustic trauma may lead to auditory impairment is commonly known and, therefore, the Veteran's claim that his hearing loss is related to in-service acoustic trauma has some tendency to make a nexus more likely than it would be without such an assertion.  The reviewer provided no reason for rejecting the Veteran's lay history, instead merely citing to medical literature concerning common occurrences of hearing loss.  Based on the foregoing, the Board finds that this opinion is not probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Consequently, and given that the Veteran is diagnosed with hearing loss and that he has credibly reported that the symptoms of hearing loss began in service, the Board finds that it is as likely as not that the Veteran's currently diagnosed hearing loss is traceable to military service.  With resolution of reasonable doubt in the Veteran's favor, service connection for hearing loss is warranted.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for bilateral hearing loss is granted.


REMAND

The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the claims for a higher initial rating for PTSD, entitlement to a TDIU, and entitlement to service connection for tinnitus.

Entitlement to a TDIU

The Veteran contends that his mental health disabilities are more severely disabling than the current rating reflects.  Specifically, through his attorney, he asserts that his service connected PTSD warrants a 70 percent evaluation and also precludes him from securing and following a substantially gainful occupation.  See June 2015 Correspondence from Attorney.

Evidence associated with the Veteran's claims file during the pendency of this appeal raised the issue of entitlement to TDIU.  Id.  As such, this claim is properly before the Board as it is part and parcel with the above-captioned initial rating claims.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996).  Generally, all issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  As the issue of entitlement to TDIU is "intertwined" with the initial rating claim for PTSD, but was not addressed by the RO, the claim is remanded to the RO.  A remand will allow for the RO to provide proper notice regarding this issue, complete development including a VA medical opinion on the matter, and consider the merits of the claim in the first instance.  Accordingly, on remand, the RO shall schedule the Veteran for a VA examination to determine the current severity of his service connected PTSD and whether or not PTSD precludes the Veteran of the ability to obtain or maintain substantially gainful employment consistent with his education and employment experience.

Service Connection for Tinnitus

The Veteran also contends that service connection is warranted for tinnitus as a result of his exposure to loud noise during service.  See October 2010 VA Form 21-4138.  The October 2014 VA examiner also addressed this claim.  The examiner noted that the Veteran did not report recurrent tinnitus.  The examiner also gave the opinion that tinnitus is less likely than not caused by or a result of military noise exposure because no tinnitus was reported by the Veteran. 

A May 1968 STR shows the Veteran was treated for complaints of pain and a blocked left ear.  

In October 2014, the VA obtained a medical opinion to determine whether the Veteran's tinnitus is the direct or proximate result of the noise exposure that he experienced during military service.  The VA reviewer noted review of the Veteran's claims file and supported, in pertinent part, her nexus opinion (in the negative) on the fact that STRs document normal hearing bilaterally on several occasions to include July 1963, July 1965, February 1965, August 1966, February 1967, and the August 1968 separation examination report also showed normal hearing in both ears.  The Board acknowledges the Veteran's audiogram results at the August 1968 separation examination show no impaired hearing in either ear.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss).  Nevertheless, the VA reviewer failed to opine whether or not the Veteran has a current diagnosis of tinnitus, and if so, whether or not current diagnosis is related to his active military service.  Additionally, the reviewer also relied almost exclusively on in-service audiological examinations and the separation examination report without addressing the Veteran's STRs, which document complaints and treatment for ear trouble during service.  The Board notes that the presence of tinnitus is capable of lay observation as it is readily identifiable by its features.  Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  The VA reviewer's report does not make apparent the extent to which it may have considered the statements submitted by the Veteran.  Accordingly, the Board finds it necessary to remand this claim for another etiological opinion that takes into account the Veteran's reports of tinnitus during the claim process. 

On remand, the VA examiner should seek information from the Veteran as to the symptoms he experiences and make a determination as to whether these symptoms render tinnitus to be an appropriate diagnosis.  Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking, and it is usually subjective in type.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 1930 (32nd ed. 2012).  The examiner must document these findings in narrative form in the report.  If tinnitus is diagnosed, the examiner should then opine as to whether it was caused by the in-service noise exposure.  Moreover, the Board notes that service connection is in effect for bilateral sensorineural hearing loss.  Thus, the examiner should also make a determination as to whether any current tinnitus is causally connected to the sensorineural hearing loss.

As this matter is being remanded for the reasons set forth above, attempts should also be made to obtain any outstanding treatment records (VA or private) relevant to the appeal.

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding medical records (VA or private) relevant to the Veteran's claim for a higher initial rating for PTSD, entitlement to a TDIU, and entitlement to service connection for tinnitus.  Any additional treatment records identified by the Veteran should be obtained and associated with the claims file.  (Consent to obtain records should be obtained where necessary.)

2.  The RO must provide notice and assistance to the Veteran with respect to the issue of entitlement to TDIU.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. 
§ 3.159.  The RO must provide VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to the Veteran.

3.  Thereafter, schedule the Veteran for an examination 
with a qualified clinician to determine the severity of his 
service-connected PTSD.  The claims file and a copy of 
this remand must be made available to the examiner for 
review, and the examiner must specifically acknowledge 
receipt and review of these materials in any reports 
generated.  

      The examiner should identify the nature, frequency, 
and severity of all current manifestations of the Veteran's 
PTSD.  Findings necessary to apply the rating criteria 
should be elicited from the examiner, and a GAF score 
in accordance with DSM-5 should be sought.  

Although an independent review of the claims file is 
required, the Board calls the examiner's attention to the 
following: 

The May 2015 private PTSD Disability Questionnaire 
conducted by A.J.H., Ph.D. date stamped as received by 
the BVA in June 2015.  

Taking into account the evidence in the claims file, 
including the Veteran's lay statements, the examiner must 
determine the current severity of the Veteran's PTSD, 
and also determine whether PTSD has caused the Veteran 
to be unable to obtain or maintain substantially gainful 
employment consistent with his education and 
employment experience, including what types of 
employment activities are limited because of this 
disability and what types of employment, if any, are 
feasible given his functional impairment.

The examiner must provide all findings, along 
with a complete rationale for his or her opinion(s), 
in the examination report.  If any of the above 
requested opinions cannot be made without resort to 
speculation, the examiner must state this and specifically 
explain whether there is any potentially available 
information that, if obtained, would allow for a 
non-speculative opinion to be provided.  

4.  The Veteran must also be afforded an appropriate 
VA examination to determine whether the Veteran 
experiences ringing, buzzing, roaring, clicking or any 
other symptoms of tinnitus, such that a diagnosis of 
tinnitus is appropriate.  The discussion as to symptoms, 
including confirmation that the VA examiner explained 
to the Veteran what tinnitus is, as well as the basis for 
the diagnosis, or lack thereof, must be documented in 
narrative format in the VA examination report.

Should tinnitus be diagnosed, the examiner must 
determine if any tinnitus found is related to the 
Veteran's military service or to his service-connected 
sensorineural hearing loss.  


All records in Veterans Benefits Management System 
(VBMS) must be made available to the examiner, and 
the examiner must specify in the examination report 
that the VBMS electronic claims file has been reviewed.  
All pertinent symptomatology and findings must be 
reported in detail.

5.  The AOJ must review the claims file and ensure that the 
foregoing development actions have been completed in full.  
If any development is incomplete, appropriate corrective
action must be implemented.  If any report does not include 
adequate responses to the specific opinions requested, it must 
be returned to the providing examiner for corrective 
action.  

6.  After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence.  If a benefit sought is not granted, the Veteran and his attorney should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response before the case is returned to the Board.

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 claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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 2014).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs