Citation Nr: 1735366 Decision Date: 08/25/17 Archive Date: 09/06/17 DOCKET NO. 10-18 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for residuals, cold injury (all extremities). 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a psychiatric disorder, to include chronic adjustment disorder, generalized anxiety disorder, and major depressive disorder, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Casey Walker, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1953 through November 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and February 2012 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (RO). In June 2016, the Board remanded the above-listed issues for further development. That development has been completed to the extent possible. The matter is again before the Board for further appellate review. The Veteran appeared before the undersigned Veterans Law Judge in a March 2017 videoconference hearing. A transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for entitlement to service connection for residuals of a cold injury and a psychiatric disorder are addressed in the REMAND portion of the decision and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's bilateral hearing loss and tinnitus are etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. §§ 1101, 1112, 1113, 1110, 1131, 1137, 1154, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for bilateral hearing loss have been met. §§ 1101, 1112, 1113, 1110, 1131, 1137, 1154, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.385 (2016). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The discussion below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The regulations pertinent to this decision (38 C.F.R. §§ 3.102, 3.104, 4.156, 3.303, 3.307, 3.309, 3.385, 20.302) were initially provided in the 2010 and 2013 Statements of the Case and were again provided in the Supplemental Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, the Veteran has not alleged any deficiency with the conduct of his hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Bilateral Hearing Loss and Tinnitus The Veteran claims he is entitled to service connection for bilateral hearing loss and tinnitus because he sustained acoustic trauma while assigned to artillery. The Veteran's DD 214 reflects that his Military Occupational Specialty was "Clerk Typist." However, military personnel records dated September 1955 show he was reassigned to the Weapons Platoon and later to the 2nd Rifle Platoon. As such, the Board finds that the Veteran was exposed to acoustic trauma and, as such, the in-service incident element has been satisfied. Service treatment records do not indicate the Veteran experienced a decrease in hearing acuity during active duty. In September 2008, the Veteran underwent a private audiometric examination for his claimed hearing loss and tinnitus. During the examination, the Veteran reported experiencing intermittent tinnitus since service, which worsened and became constant in the last ten to 15 years. Audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Avg RIGHT 20 20 25 35 30 30 LEFT 20 20 20 25 40 26.25 His speech discrimination test (Maryland CNC) scores were 96 percent and 100 percent in the right and left ears, respectively. These results indicate the Veteran had hearing loss for VA purposes in his left ear, but not his right. The Veteran underwent another private audiometric examination in March 2017. Audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Avg RIGHT 20 20 40 30 25 30 LEFT 20 25 30 30 35 30 His speech recognition scores were 96 percent and 100 percent in the right and left ears, respectively, although it is unclear whether a Maryland CNC word list was used. These results indicate the Veteran had bilateral hearing loss for VA purposes. Initially, the record does not reflect the Veteran was diagnosed with hearing loss until September 2008 and March 2017 in his left and right ears, respectively. Therefore, the record does not reflect that the Veteran was diagnosed with bilateral hearing loss to a compensable degree within one year of separation from active duty. Thus, the presumptive service connection provision of 38 C.F.R. §§ 3.307(a)(3) and 3.309(a) for chronic disabilities are not applicable. The March 2017 audiologist opined that "after evaluating his history and reviewing auditory symptoms and test results, . . . [the Veteran's] hearing loss and tinnitus are most likely caused by or a result of his service in the military." In a statement dated June 2017, Dr. M. opined that after reviewing the Veteran's military file and results of past audiograms, "it is at least as likely as not that his hearing loss and tinnitus are related to his time in service." The Board finds Dr. M.'s opinion to be probative as it was based on the Veteran's file and his reports that he sustained no further acoustic trauma, supported by his post-military profession as an accountant. Given the March 2017 audiologist and Dr. M.'s positive nexus opinions, the Board finds the weight of the evidence supports the issues of whether the Veteran's hearing loss and tinnitus had onset or were otherwise caused or aggravated by his active duty service. As such, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMAND During his March 2017 Board hearing, the Veteran testified that he began seeking treatment for his psychiatric disability beginning in 1999. These records are not associated with the claims file. Any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board finds that further attempts to obtain any treatment records from 1999 are required, as these records are constructively of record. 38 C.F.R. § 3.159(c). The Veteran claims entitlement to service connection for the residuals of a cold injury. Service treatment records dated May 1955 clearly noted he was stationed near the DMZ and his DD 214 noted he had over ten months of foreign service. Exposure to cold weather in Korea is conceded as consistent with the circumstances of the Veteran's service. A March 2011 private medical record noted EMG testing showed peripheral neuropathic process especially sensory neuropathy in the small fibers. The physician opined the changes were "likely related to the cold injury." However, the physician did not provide any indication that the changes were due to a cold injury sustained while the Veteran was on active duty. Further, the physician did not provide an explanation as to how a cold injury would cause changes to the sensory neuropathy of the small fibers. The Board finds an examination is warranted. As the appeal is being remanded, the Veteran's VA treatment records should be updated for the file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO should obtain records reflecting any VA medical treatment provided by the Ann Arbor VA Medical Center and all related clinics from 1999 through December 2000. Since earliest records would be paper records, searches should be made of any archived or retired records, with documentation as to the results. 2. Obtain and associate with the record all the Veteran's outpatient treatment records from the Tampa and Ann Arbor VA Medical Centers and all associated clinics from July 2017 to the present. 3. Only after obtaining the above identified records, to the extent they exist, then schedule the Veteran for a VA examination to obtain an opinion as to the residuals of his cold injury. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current diagnosed neurological disability was incurred in, as a result of, or otherwise etiologically related to the Veteran's active duty service. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the above and any other development deemed necessary, readjudicate the remanded issues. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case. 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 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). _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs