Citation Nr: 1645500	
Decision Date: 12/05/16    Archive Date: 12/19/16

DOCKET NO.  13-27 048	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Chicago, Illinois 


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for a psychiatric disability, to include adjustment disorder and posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse



ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from August 1967 to August 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  The case was then transferred to the Chicago, Illinois RO.  In April 2015, the Veteran testified at a Travel Board hearing before the undersigned at the Chicago, Illinois RO.  

In June 2015, the Board issued a decision on various issues and remanded the issues of service connection for bilateral hearing loss and for a psychiatric disability to include PTSD.

The Board notes that the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009).  Therefore, the issue of service connection for a psychiatric disability has been recharacterized as indicated on the front page of this decision.

The issue of service connection for a psychiatric disability to include anxiety disorder and PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. 



FINDING OF FACT

The Veteran had a bilateral hearing loss disorder prior to entering service as shown on his entrance examination and it did not permanently worsen beyond its natural progression during his active service; current bilateral hearing loss is not otherwise attributable to service.  


CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by active service and sensorineural hearing loss may not be presumed to have been incurred or aggravated in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, 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 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information in an October 2011letter prior to the initial adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The Veteran has not alleged any notice deficiency during the adjudication of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service treatment records (STRs), VA records, and identified private treatment records have been obtained and associated with the record.  The Veteran was also provided with a VA examination and an addendum opinion which contains a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide an opinion regarding the etiology of the Veteran's claimed condition.  VA's duty to assist with respect to obtaining relevant records and examination has been met.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Finally, the Veteran testified at a Board hearing.  The hearing was adequate as the DRO/Veterans Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked.  38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).

In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).

Service Connection for Bilateral Hearing Loss

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  In addition, sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of a veteran's separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With chronic diseases shows as such in service or within the presumptive period 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.  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date.  Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim.  38 C.F.R. § 3.303(b).  This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases).  Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, supra.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Service connection may also 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).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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).  

Hearing loss disability is defined by regulation.  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, 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.  Since November 1, 1967, audiometric results have been reported in standards set forth by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  Service department audiometric charts dated after November 1, 1967 are presumed to be in ISO-ANSI units unless otherwise specified, while such charts in VA medical records dated after June 30, 1966, are similarly presumed to be in ISO-ANSI units.  In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses below.

The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss."  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability.  

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

On the Veteran's entrance examination in June 1967, on the authorized audiological evaluation, puretone thresholds, in decibels, were as follows (with no testing performed at 3000 Hertz):




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
15
n/a
50
LEFT
10
15
15
n/a
35

With conversion to ISO-ANSI units, the puretone thresholds in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
15
25
n/a
55
LEFT
25
25
25
n/a
40

On a November 1968 audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
20
30
LEFT
10
10
20
35a
40

At discharge, it was noted that the Veteran had undergone plastic surgery on his ears as an infant.  On the audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
30
30
LEFT
5
0
5
35a
25

The examiner indicated that the Veteran had slight hearing loss.  

In September 2011, the Veteran underwent a private audiological ear examination at the Brookside Specialty Center which showed hearing loss per 38 C.F.R. § 3.385.

In January 2012, the Veteran was afforded a VA audiological examination.  The examiner noted that at entrance to service the Veteran had hearing loss and at discharge, he had hearing loss, but his hearing was slightly better at discharge than on entrance.  Current audiometric testing revealed hearing loss per 38 C.F.R. § 3.385.  The diagnosis was bilateral mild to severe sensorineural hearing loss with good word recognition.  The examiner opined that it was not as likely as not that hearing loss was related to noise exposure in the military as the hearing evaluations while in the service indicated no change in hearing.  There was hearing loss prior to the Veteran having entered the Air Force and no significant change in hearing between the enlistment and separation hearing test results.  There is no evidence of increased hearing loss within a few years of leaving the service nor in the 40 years between the date he left the service and the current hearing test.

In May 2015, the Veteran was treated by a VA audiologist.  The audiologist noted that the Veteran had bilateral sensorineural hearing loss and was a candidate for hearing aids.  Thereafter, in June 2015, the Veteran was seen for hearing aid consultation.

Since additional VA medical records had been obtained, in July 2015, a VA audiological addendum was provided.  The VA audiologist concluded that the Veteran's bilateral hearing loss which existed prior to service was not aggravated beyond its natural progression by an in-service event, injury or illness.  The examiner noted that the enlistment examination (after conversion factors were applied) showed hearing to be a mild loss in both ears (AU).  The Veteran's separation examination in June 1971 showed hearing to be a normal to mild loss, AU, as well with no shifts from time of enlistment.  The examiner stated that this means his hearing did not worsen in service and was not aggravated by in-service noise exposure.  

At this juncture, the Board notes that even though the examiner saw no significant threshold shifting, there was slight shifting in the thresholds based on the numerical Hertz figures, but they were for the better by discharge.

The Veteran currently has bilateral hearing loss, but there were findings of hearing loss when the Veteran entered service.  

A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. §§ 1111.

A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  

When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition.  38 U.S.C. § 1153.  If this burden is met, then the veteran is not entitled to service-connected benefits.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity.  Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. § 3.306(a).  In contrast, a flare-up of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991).  Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation.  Green v. Derwinski, 1 Vet. App. 320, 323 (1991).  If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service.  Verdon v. Brown, 8 Vet. App. 529 (1996).

As noted, veterans are presumed to have entered service in sound condition as to their health.  This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions,"  Id. at (b)(1).

As noted, at the time of entry, there is a presumption that the Veteran entered in sound health.  However, the audiometric testing at entrance showed bilateral hearing loss per 38 C.F.R. § 3.385.  Thus, the Veteran had a bilateral hearing loss disorder when he entered service as noted on entrance.  As such, he is not entitled to a presumption of soundness and there is no need to determine if the presumption of soundness is rebutted because it never attached as to hearing loss.  

The Veteran's bilateral hearing loss disorder will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  

In this case, the Veteran's hearing ability actually slightly improved during service and a recent VA examination report and an addendum thereto have provided opinions that there was no aggravation of the preexisting hearing loss during service, including beyond its natural progression.  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  In this case, the audiological opinions reflected the Veteran's medical history, provided fully articulated opinions, and also furnished reasoned analyses.  The Board therefore attaches significant probative value to the opinions, and the most probative value in this case.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).

The Board has considered the Veteran's own opinion that his hearing worsened or began during service.  The Veteran's wife and daughter have also stated that the Veteran has had hearing problems for years.  However, as to the matter of whether the Veteran's preexisting hearing loss worsened during service, the Board finds that the lay evidence is outweighed by the findings to the contrary in the VA medical opinions as they are audiological opinions provided based on specialized expertise in hearing loss.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).  Further, in determining the weight assigned to the evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data.  See Black v. Brown, 10 Vet. App. 279, 284 (1997).  In this case, the audiological medical opinions are more probative.  

In sum, based on the probative evidence, the Board finds that the record demonstrates that the Veteran had a bilateral hearing loss disorder prior to his entry into active duty, and as documented on his audiological evaluation on the entrance examination ("noted" on entrance).  The record indicates further that the bilateral hearing loss disorder did not permanently increase in severity during service, including beyond its natural progression.  The audiometric findings were better at separation.  Thus, the preexisting hearing loss disability was not aggravated during active service.  The Veteran's current bilateral hearing loss disorder is not otherwise attributable to service.  Therefore, bilateral hearing loss was not incurred in or aggravated by service.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.


ORDER

Service connection for bilateral hearing loss is denied.  


REMAND

On remand, the RO was instructed to perform certain development, including obtaining records and affording the Veteran an examination.  The pertinent records were obtained.  The Veteran was afforded a VA examination, but it did not address all of the Board's inquiries.  The VA examination determined that the Veteran did not have PTSD, but rather had an adjustment disorder.  The Board observes that the RO did not attempt to corroborate the Veteran's claimed stressor of his unit coming under mortar/rocket and enemy fire, but his diagnosis of PTSD was not confirmed.

With regard to an adjustment disorder (or any other psychiatric disorder), the Board previously indicated that on entrance, the Veteran reported having depression or excessive worry.  On separation, he reported having depression or excessive worry as well as frequent trouble sleeping, frequent or terrifying nightmares, and nervous trouble.  In January 2012, the VA examiner opined that the Veteran met the criteria for anxiety disorder, NOS.  As to the origins and course of this disorder, lacking any documentation of ever having a mental problem, the examiner stated that it was not possible for the examiner to say without resorting to mere speculation.  Thus, the examiner concluded that she could not say whether the claimed condition was or was not incurred in or caused by the claimed in-service injury, event, or illness.  However, as the Board previously noted, there was in fact documentation that the Veteran had mental health symptoms although the VA examiner noted that there was no such documentation.  The recent August 2015 medical examination opinion did not address the matter of a preexisting psychiatric disability.  

In light of the foregoing, further action is necessary in this case by way of a medical addendum, in accordance with the previous Board remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders).

Accordingly, the case is REMANDED for the following action:

1.  Obtain a VA psychiatric addendum.  The examiner should review the record.  The examiner should provide an opinion as to the following questions for any current psychiatric disorder including an adjustment disorder, an anxiety disorder, and a depressive disorder :

(a) Is there clear and unmistakable (medically undebatable) evidence that the Veteran had a psychiatric defect, infirmity, or disorder that preexisted his military service; please identify with specificity any evidence that supports this finding.  The examiner is advised that the determination regarding inception should not be based solely on the Veteran's reported history, but should also include consideration of the clinical records and the known characteristics of any diagnosed psychiatric disability;

(b) If there is clear and unmistakable evidence that the Veteran had a preexisting psychiatric defect, infirmity, or disorder at the time of his service entrance, is there evidence that the Veteran's preexisting psychiatric disorder increased in severity (worsened) in service;

(c) If the preexisting psychiatric defect, infirmity, or disorder increased in severity in service, is there clear and unmistakable (medically undebatable) evidence that the increase in severity during service was due to the natural progress of the psychiatric disorder; please identify with specificity any evidence that supports this finding;

(d) If the examiner determines that the Veteran did not have a psychiatric defect, infirmity, or disorder that preexisted service, is it at least as likely as not that the Veteran currently has a psychiatric disorder that had its onset in, or is otherwise etiologically related, to his military service.

The examiner must provide a comprehensive report including complete rationales for all conclusions reached.  

2.  Review the medical opinion obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry.

3.  Readjudicate the claim on appeal in light of all of the evidence of record.  If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto.

The Veteran 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 2014).



______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs