Citation Nr: 1637622	
Decision Date: 09/26/16    Archive Date: 10/07/16

DOCKET NO.  13-35 727	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and JF, BF, KF, and SC.




ATTORNEY FOR THE BOARD

David Nelson, Counsel


INTRODUCTION

The Veteran had active duty service from August 1966 to July 1970 and from January 1971 to February 1973.  He served in the infantry in Vietnam and earned the Combat Infantryman's Badge (CIB) and a Bronze Star for his service.

This case comes before the Board of Veterans' Appeals (BVA or Board) from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

In September 2015 the Veteran gave testimony at a hearing at the RO before a local hearing officer.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearing.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).


FINDINGS OF FACT

1.  The Veteran has PTSD related to active service.

2.  There has been no demonstration of current left ear or right ear hearing loss disability for VA purposes by the competent clinical evidence of record.







CONCLUSIONS OF LAW

1.  The criteria for service connection for PTSD have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a) (2015).

2.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

The duty to notify has been met.  See July 2010 VA correspondence.  Neither the Veteran, nor his representative, has alleged prejudice with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  In light of the foregoing, nothing more is required.

With regard to the duty to assist, the Veteran's service treatment records are associated with the claims file as are identified VA medical records and private medical records.  The Board finds that the VA opinions obtained in this case are more than adequate as the opinions considered the pertinent evidence of record and provided a rationale for the conclusions.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).

The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding.  VA's duties to notify and assist are met, and the Board will address the merits of the claims.

Applicable Law and Regulations

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  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).  

Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations 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).  This rule does not mean that any manifestations in service will permit service connection.  To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection for certain chronic diseases may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

I.  Acquired psychiatric disability, including PTSD

Specific to claims for PTSD, there must be medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor.  38 C.F.R.§ 3.304(f).

In this case, the evidence of record demonstrates that the Veteran participated in combat activities during his service in the Republic of Vietnam, as evidenced by his awards that include the CIB.  Therefore, he is entitled to the combat presumption located in 38 C.F.R.§ 3.304(f)(2).  In his lay statements, he has described instances from combat, including going on patrols and losing a comrade to enemy fire.  The issue in this case, therefore, is whether the Veteran has PTSD.

VA examination reports dated in October 2011 and September 2015 concluded that the Veteran did not meet the criteria for a diagnosis of PTSD.  By contrast, a June 2013 VA psychiatric treatment record noted a diagnosis of PTSD.

In an October 2013 letter a private psychologist (DT, PhD) noted that he had been treating the Veteran for several weeks and stated that the Veteran had been "dealing with symptoms of PTSD over the last several years since returning from Vietnam."  While observing that the Veteran's "diagnostic picture is complicated by the memory problems" associated with the Veteran's dementia, DT indicated that "the case for service connection for PTSD could be made."  In addition to the October 2013 letter there are also copies of the Veteran's treatment records from the office of DT.  Significantly, the Board notes that while an August 2013 treatment record (initial intake) contained a notation that essentially indicated rule out PTSD, a November 2013 treatment record reflected a diagnosis of PTSD.

The requirement of a current disability 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.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  The Board finds that in this case the Veteran's private psychologist's diagnosis is sufficient to show a current diagnosis of the PTSD disorder on appeal.  The above evidence is sufficient to meet the three basic service connection prongs of in-service event, current disability, and nexus.  38 C.F.R. § 3.303; McClain, supra.  As such, service connection for PTSD is warranted.

While cognitive disorders such as dementia have been diagnosed, such has not been linked to the Veteran's active service, and the October 2011 VA examiner specifically indicated that the Veteran's dementia was not related to his active service.

II.  Hearing loss

The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.

At the September 2015 RO hearing the Veteran did not offer any substantive testimony concerning his hearing loss claim.

The Veteran's active duty service treatment records are negative for any recorded evidence of complaints, treatment, or diagnoses of any hearing loss.  A May 1974 "Quads" service examination report noted (in section 74) left ear high frequency hearing loss.

The reported audiometric findings and speech recognition scores from the October 2011 and September 2015 VA audiological examinations did not demonstrate right ear or left ear hearing loss disability for VA purposes.  In fact, the record for the entire appeal period is absent for any competent clinical evidence showing that the Veteran has current right or left ear hearing loss "disability" for VA purposes.  38 C.F.R. § 3.385.

Absent evidence of a current hearing loss disability, an award of service connection for right or left ear hearing loss is not appropriate.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).


ORDER

Service connection for PTSD is granted.

Service connection for bilateral hearing loss is denied.




____________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs