Citation Nr: 1632533 Decision Date: 08/16/16 Archive Date: 08/24/16 DOCKET NO. 10-12 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for other specified stressor-related disorder. 3. Entitlement to service connection for a psychiatric disorder other than posttraumatic stressor disorder (PTSD) and other specified stressor-related disorder, to specifically include major depressive and anxiety disorders. 4. Entitlement to service connection for a heart disorder, to include coronary artery disease (CAD) and to also include as secondary to service-connected psychiatric disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from December 1968 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before a Veterans Law Judge in June 2015. The Veterans Law Judge who held the June 2015 hearing is no longer available to participate in this decision. The Veteran was informed of this fact as well as of his right to have another hearing before a different Veterans Law Judge in a May 2016 letter. The same letter notified the Veteran that if he did not respond within 30 days, the Board would assume he did not want another hearing and proceed accordingly. The Veteran has not responded to the May 2016 letter. The Board will therefore assume that he does not wish to have another hearing and will proceed with adjudication of his claim at this time. This case was previously remanded for additional development in September 2015; that development having been completed, the case has been returned to the Board at this time for further appellate review. The issues of service connection for CAD and a psychiatric disorder other than PTSD and other specified stressor-related disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing disability as defined by 38 C.F.R. § 3.385 during the appeal period. 2. By resolving all reasonable doubt in his favor, the Veteran's "other specified stressor-related disorder" is shown to be related to military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015). 2. The Veteran's "other specified stressor-related disorder" is shown to have been incurred in or otherwise the result of military service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). In the instant case, VA provided adequate notice in letters sent to the Veteran in May 2007 and December 2015. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. §3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims file. VA provided relevant and adequate examinations in January 2010 and January 2016. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Analysis of Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). "To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including psychoses and bilateral hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2015). Bilateral Hearing Loss On appeal, the Veteran has stated that he believes that he has bilateral hearing loss which is related to military service, particularly due to the constant loud noise he was exposed to during military service. The Board has reviewed the Veteran's private treatment records from several different treatment providers which are of record. None of those private records demonstrate any treatment for audiological disorders, particularly bilateral hearing loss. The Board has also reviewed the Veteran's VA treatment records from the Huntington VA Medical Center through January 2016. The first instance of any treatment for hearing loss is shown in August 2009, at which time the Veteran reported a gradual onset of hearing loss over the past several years. On examination, the Veteran's puretone thresholds were noted as "within normal limits hearing," although exact decibels of loss were not shown at that time. The Veteran was noted as having word recognition scores of 92 percent in the right ear and 100 percent in the left ear; the VA audiologist did not indicate what test was used to obtain those scores or whether the Maryland CNC test was used at that time. The Veteran was referred for additional consultation for his tinnitus, which occurred in September 2009. The Veteran was also seen for additional tinnitus counseling in December 2009. Neither the September 2009 nor the December 2009 consultations addressed the Veteran's hearing loss and neither provided any further audiometric data on which to analyze the Veteran's claimed bilateral hearing loss. The Veteran underwent a VA audiological examination in January 2010. The Veteran indicated that he had general hearing problems and that he was exposed to loud noise as a result of his military service; he denied any recreational or post-service occupational noise exposure. The Veteran's audiometric examination revealed the following puretone threshold results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Speech Discrimination RIGHT 15 10 15 20 25 96% LEFT 20 15 15 20 20 94% The Veteran additionally underwent another VA audiological examination in February 2016. Audiometric examination revealed the following puretone threshold results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Speech Discrimination RIGHT 10 5 10 10 20 94% LEFT 15 15 10 20 20 94% Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA 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. The failure to meet these criteria at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service." Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see 38 C.F.R. § 3.303(d) (2015); Heuer v. Brown, 7 Vet. App. 379, 384 (1995). The threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley, at 157; 38 C.F.R. § 3.385. Based on the foregoing evidence, the Board must deny service connection for bilateral hearing loss at this time as the evidence does not demonstrate any current hearing loss disability under 38 C.F.R. § 3.385. As the audiometric data obtained during the appeal period demonstrates, the Veteran does not have any decibel losses for any threshold from 500 Hz to 4000 Hz, bilaterally, that is 40 or greater. Likewise, the Veteran does not have 3 of those thresholds with 26 or greater decibels of loss, bilaterally. In both of the VA examinations, the Veteran's Maryland CNC speech discrimination scores were 94 percent or greater, which would not allow a finding of a hearing disability under VA regulations. The Board acknowledges the Veteran's 92 percent word recognition score which was shown in the August 2009 audiological consultation. On its face, the Board cannot discern whether that is a speech discrimination test that was administered under the Maryland CNC test, or whether that was some other test. Notwithstanding, the evidence is clear that the Veteran's right ear-the only ear that is shown to have a word recognition score that could possibly allow a finding of a disability under VA regulations-later showed speech discrimination scores under the Maryland CNC test which were 96 and 94 percent, respectively, during VA audiological examination. The Board finds that the Veteran's VA examinations are more probative evidence of whether the Veteran has a bilateral hearing disability under VA regulations. Accordingly, as the Veteran does not have a bilateral hearing disability under 38 C.F.R. § 3.385, the Board must deny service connection for bilateral hearing loss at this time as the evidence does not demonstrate that the Veteran has a current disability. See 38 C.F.R. §§3.102, 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Other Specified Stressor-Related Disorder A review of the Veteran's private and VA treatment records documents diagnoses of PTSD, major depressive disorder (MDD), and anxiety disorder. In the Board's previous September 2015 decision, the Board denied service connection for PTSD, but remanded the claim of service connection for a psychiatric disorder other than PTSD for additional development. Based on that September 2015 remand, the Veteran underwent a VA psychiatric examination in January 2016. In that examination, the Veteran was diagnosed with an "other specified stress-related disorder." The examiner noted under that diagnosis that the Veteran met the Criterion A standards for at least two of his claimed stressors, including a racial riot wherein an African-American soldier was jailed and lit his bedding on fire and also witnessing a young Korean girl being hit by a garbage truck and her body was subsequently thrown on top of the garbage. After examination, the examiner concluded that the Veteran has experienced at least one Criterion A while in the military. He meets the intrusion, avoidance and arousal/reactivity criteria but not the negative cognitions/mood criteria [for a diagnosis of PTSD], and the symptoms have resulted in minimal psychosocial and occupational impact but some psychological distress. His symptoms are well-controlled by medication. The Veteran's above listed symptoms of "other specified stressor-related disorder" are AT LEAST AS LIKELY AS NOT caused by or aggravated by his military service. Based on that evidence, the Board must find that the Veteran has been diagnosed with an other specified stressor-related disorder; such meets the first element of service connection and the Veteran is found to have a current disability. The Board notes that the January 2016 examiner has linked that disability to military service; the examiner found that the Veteran was credible with regards to at least the two noted stressors above and that those stressors have caused the Veteran's other specified stressor-related disorder. By resolving all reasonable doubt in his favor, the Board finds that service connection for other specified stressor-related disorder is warranted based on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for "other specified stressor-related disorder" is granted. REMAND In the Board's previous remand, it was noted that the Veteran had diagnoses of major depressive and anxiety disorders reflected in his private and VA treatment records. The Board ordered a VA examination to address all psychiatric disorders other than PTSD; the Veteran underwent a VA examination in January 2016, during which the examiner diagnosed the Veteran with other specified stressor-related disorder. That examiner did not discuss whether the Veteran had diagnoses of major depressive or anxiety disorders and if so whether such were related to military service or not. Consequently, the Board must remand the psychiatric disorder claim in order to ensure compliance with its previous remand instructions and to obtain an addendum opinion from that examiner addressing whether the Veteran was diagnosed with major depressive and anxiety disorders, or any other psychiatric disorders, and if so whether such are related to the Veteran's military service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The Veteran's representative has noted that the Veteran has alleged his claimed heart disorder is caused or aggravated by his psychiatric disorder. As it is theoretically possible that the Veteran's heart disorder may not be related to or aggravated by his current service-connected psychiatric disorder but is related to an as-of-yet-nonservice-connected psychiatric disorder, the Board finds that the heart disorder claim is inextricably intertwined with the remanded psychiatric disorder claim and must also be remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, any outstanding private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records from the Huntington VA Medical Center, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his psychiatric and heart disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Submit the claims file to the January 2016 psychiatric examiner in order for that examiner to provide an addendum opinion clarifying whether the Veteran has any psychiatric disorder other than PTSD and other specified stressor-related disorder. Particularly, the examiner should discuss whether the Veteran has diagnoses of major depressive and anxiety disorders. If the examiner determines that the Veteran does not have those noted disorders, the examiner should opine as to (1) whether the previous diagnoses of those disorders in the record were inappropriate, incorrect, or mis-diagnosed and the examiner should explain the medical rationale for that conclusion; and/or, (3) whether those disorders were properly diagnosed, although they resolved during the appeal period, and a medical rationale must be provided for that conclusion. For any current and/or prior-diagnosed but resolved psychiatric disorder other than PTSD and other specified stressor-related disorder, but particularly major depressive and anxiety disorders, the examiner must then opine whether it is at least as likely as not (50 percent or greater probability) that those disorders began during or otherwise are related to military service. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. If the January 2016 examiner is no longer available, a similarly-qualified examiner may provide the above-requested opinions. If either examiner determines that the above cannot be answered without examination of the Veteran, such should be scheduled as necessary and appropriate. 4. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims of service connection for a psychiatric disorder other than PTSD and other specified stressor-related disorder, and a heart disorder to include CAD. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran 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 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 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs