Citation Nr: 1746919	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO.  13-18 545A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an effective date prior to July 21, 2010, for the award of service connection for post-traumatic stress disorder ("PTSD"). 

2.  Entitlement to an effective date prior to July 16, 2013, for the award of entitlement for total disability based upon individual unemployability ("TDIU").  

3.  Entitlement to service connection for a bilateral hearing loss disability. 

4.  Entitlement to service connection for hepatitis-C.  

5.  Entitlement to an increased evaluation, in excess of 50 percent prior to July 21, 2010, and in excess of 70 percent thereafter, for PTSD. 

6.  Entitlement to a compensable evaluation for tinea versicolor. 




REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

M. Timbers, Associate Counsel


INTRODUCTION

The Veteran served as a member of the United States Army, with active duty service from July 1967 through August 1969.

This appeal comes to the Board of Veterans' Appeals ("Board") from two rating decisions, dated June 2011 and February 2013, by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Winston-Salem, North Carolina (hereinafter Agency of Original Jurisdiction ("AOJ")).

The Veteran testified at a December 2016 Board videoconference hearing, held before the undersigned Veterans Law Judge.  A transcript of this hearing has been reviewed and associated with the Veteran's claims file.

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

The issues of entitlement to an earlier effective date for the award of a TDIU, entitlement to service connection for hepatitis-C, and entitlement to increased ratings for PTSD and tinea versicolor are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.  VA will notify the Veteran if further action is required. 


FINDINGS OF FACT

1. In a March 2009 rating decision, the AOJ denied the Veteran's claim for entitlement to service connection for PTSD.  The Veteran was notified of this decision in a letter dated March 16, 2009, which was mailed to the Veteran's then current address of record.  The Veteran did not appeal that decision, and it became final.

2.  The Veteran has a current bilateral hearing loss disability for VA compensation purposes that is the result of hazardous noise exposure, as an infantryman, during his active duty service with the United States Army.


CONCLUSIONS OF LAW

1. The criteria for an award of an earlier effective date, prior to July 21, 2010, for service connection for PTSD has not been met.  38 U.S.C.A. §§ 5110, 5111 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400, 20.302, 20.1103 (2016).

2.  Resolving all reasonable doubt in his favor, the Veteran has a bilateral hearing loss disability which was incurred during active military service.  38 U.S.C.A. §§  1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§  3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309, 3.385 (2015). 




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).

The Veteran's claim for entitlement to an earlier effective date, for the award of entitlement to service connection for PTSD, is considered a "downstream" element of the AOJ's grant of service connection.  For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

With respect to the Veteran's application for entitlement to service connection for a bilateral hearing loss disability, the Board notes that VA notified the Veteran, in correspondence May 2012 of the information and evidence needed to substantiate and complete his claim including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter informed the Veteran to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claim.  The Veteran also was informed of when and where to send the evidence.  After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Additional notice of the five elements of a service-connection claim was provided in the May 20125 VCAA notice, as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to testify before the Board.  It appears that all known and available records relevant to the issues discussed herein have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.

Furthermore, while the Board is aware the Veteran has applied for and is in receipt of disability payments from the Social Security Administration ("SSA"), the Board finds that these records are not relevant to the claims discussed herein.  While VA's duty to assist generally requires that such records be obtained, VA is only required to obtain Social Security Records when those records are potentially relevant to the claim on appeal.  See Golz v. Shinseki, 590 F. 3d 1317 (Fed. Cir. 2010) (holding that VA's duty to assist was limited to obtaining relevant SSA records, and defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim.").  The Board finds any SSA records are not relevant to the claims adjudicated herein.  Specifically, there is no reasonable possibility any records would substantiate the Veteran's claim for an earlier effective date, because, as will be discussed in greater detail below, the Veteran is already in receipt of earliest possible effective date for its grant of entitlement to service connection for PTSD.  With respect to his claim for service connection for a hearing loss disability, the Veteran has not asserted that he obtained disability from SSA due to his hearing loss disability.  Rather, he has attributed his inability to work to his mental health disabilities.  Accordingly, the Board will proceed with a decision on his claim service connection for his hearing loss disability. 

The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") at a videoconference hearing, held at the RO in December 2016.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the March 2014 hearing, the VLJ noted the basis of the prior determination and explained the elements of the claims that were lacking to substantiate the Veteran's claims for benefits.  The VLJ specifically noted the issues on appeal.  The Veteran was assisted this hearing by his representative, Disabled American Veterans.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error.

Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.  Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . .").  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

General Laws and Regulations Governing Entitlement to Earlier Effective Dates:

The Veteran seeks entitlement to an earlier effective date for the award of service connection for PTSD.  As an initial matter, the Board notes that the Veteran applied for entitlement to service connection for PTSD on September 26, 2008.  This claim was denied by the AOJ in a March 2009 Rating Decision.  The Veteran did not appeal this denial, and it became final.  Thereafter, the Veteran submitted a claim to reopen this denial on July 21, 2010.  In a June 2011 Rating Decision, the AOJ granted the Veteran entitlement to service connection for PTSD, effective July 21, 2010.  In statements to the Board, the Veteran argues the date of entitlement should be the date of his initial application for service connection, September 26, 2008.  See e.g. July 2010 Correspondence.  

In general, except as otherwise provided, the effective date of an evaluation for an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (emphasis added); see also Wells v. Derwinski, 3 Vet. App. 307 (1992).  

Benefits are generally awarded based on the date of receipt of the claim.  38 C.F.R. § 3.1(r), 3.4000.  Specifically, with respect to a grant of service connection following the receipt of new and material evidence received subsequent to a prior denial, governing regulation provides that the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(q) and (r).  All effective date determinations must be based upon the facts found, unless otherwise specifically provided.  38 U.S.C.A. §§ 5101, 5110; 38 C.F.R. § 3.400. 

As applied to the instant appeal, the Veteran argues that the effective date for the award of entitlement to PTSD should be the date of his original application, September 26, 2008.  See e.g. April 2012 Statement in Support of Claim.  In statements to the Board, the Veteran states that the March 2009 Rating Decision, which denied his initial claim of entitlement to PTSD, did not become final.  Therefore, argues the Veteran, his award of service-connection should be retroactive to the date of his original application.    

The Veteran has provided several arguments as to why the March 2009 Rating Decision, did not become final.  First, the Veteran contends he never received any notification letter in March 2009, which explained why his claim for service connection was denies.  See July 2010 Correspondence.  Alternatively, the Veteran acknowledges that he received the notification of his denied claim, but states that he expressed an intention to appeal this denial to his VA representative, who then failed to timely complete the paperwork.  See July 2011 Statement in Support of Claim.  

As to the Veteran's first argument, that he did not receive proper notification of his denied claim, the Board finds this argument fails.  Specifically, there is a presumption of administrative regularity under which it is presumed that government officials have properly discharged their official duties, including in mailing notice.  See Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992)(quoting United States v. Chem. Found, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926).  In order for the presumption to attach, VA must mail notice to the latest address of record.  See Ashley, 2 Vet. App. at 309.  While Ashley concerned the mailing of a Board decision, the same law applies to mailing of notice of an RO decision.  See Mindenhall v. Brown, 7 Vet. App. 271 (1994); see also Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992).  

To rebut this presumption, the appellant, in addition to asserting non-receipt, bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.  See Ashley, 2 Vet. App. at 309.  Absent the production of such clear evidence, delivery is proven. If, on the other hand, clear evidence is presented to rebut the presumption of regularity, the burden then shifts to VA to establish proper mailing of notice in accordance with the applicable case law.  See Baxter v. Principi, 17 Vet. App. 407, 410 (2004).  

Whether clear evidence exists to rebut the presumption of administrative regularity is a question of law.  See Crain v. Principi, 17 Vet. App. 182, 188 (2003).  An assertion of non-receipt, standing alone, does not rebut the presumption of regularity in VA's mailing process.  See Jones v. West, 12 Vet. App. 98, 102 (1998).  Instead, the clear evidence requirement mandates not only a declaration by the appellant of non-receipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery, as not all address errors rise to the level of clear evidence to rebut the presumption of administrative regularity in the mailing of notice.  See Santoro v. Principi, 274 F.3d 1366, 1370 (Fed. Cir. 2001).

As applied to the Veteran's allegation of non-receipt, the Board finds this allegation, standing alone, fails to rebut the presumption of regularity.  A review of the evidentiary record reveals the March 16, 2009 notification letter, containing the AOJ's denial of the Veteran's claim, was mailed to the Veteran's then current address of record. There is no evidence that this March 16, 2009 mailing was returned to the AOJ as undeliverable.  As such, the Veteran's assertion alone is insufficient to rebut the presumption of regularity in VA's mailing process.  See 38 U.S.C.A. § 5104(a); see also Kyhn v. Shinseki, 716 F.3d 572, 577 (Fed. Cir. 2013).

Additionally, in further support of the Board's finding that the Veteran did receive the March 16, 2009 notification letter, the Board notes the AOJ mailed to the Veteran a VCAA notification letter, dated October 9, 2008, to the Veteran's then current address of record.  On October 30, 2008, the Veteran signed and returned the AOJ's VCAA notification letter, and requested that the RO allow additional time for him to submit evidence in support of his claim.  By signing and returning the VCAA notification letter, the Veteran demonstrated that the address on file with the AOJ was the correct address, and that the Veteran was receiving his mail.  Thereafter, in a letter dated July 21, 2010, the Veteran wrote to the AOJ alleging non-receipt of the March 16, 2009 notification letter.  In his correspondence, the Veteran listed his current address as the same address both the October 9, 2008 VCAA notification and the March 16, 2009 notification letters were mailed to.  

Therefore, with consideration of the above analysis, the Board finds sufficient evidence demonstrating that the AOJ notified the Veteran that his claim for entitlement to service connection for PTSD, was denied.  See Jones, 12 Vet. App. at 102.

Turning to the Veteran's second argument, that his failure to timely appeal the March 2009 Rating Decision was the result of VA error, the Board similarly finds this argument without merit.  The March 16, 2009 notification letter informed the Veteran of how to appeal his denial, and the time limits within which he must do so.  The notification letter further provided the Veteran with VA Form 4107, which informed the Veteran of how to properly submit a Notice of Disagreement.  The Board further observes that the notification letter, and attached VA Form 4107, listed the available resources available to the Veteran in case he required assistance.  These included a phone number to contact VA, internet websites, an address where the Veteran could mail general questions and correspondence, and a list of service organizations recognized by the Secretary to assist in the filing of claims.  

Although the Board is sympathetic to the Veteran's allegation towards his representative, ultimately it is the Veteran's responsibility to timely appeal his claim.  However, the Board does observe that the Veteran did not change his representative following this allegation of failure to mail his Notice of Disagreement.  In fact, the Veteran submitted a renewed agreement in July 2011, electing to continue using his selected representative.

The record does indicate that the Veteran contacted the AOJ in May 2010, where he inquired about the status of his appeal for entitlement to service connection for PTSD.  However, in a letter dated June 10, 2010, the AOJ informed the Veteran that a timely Notice of disagreement had not been received, and the March 2009 denial was therefore final.  Other than this inquiry, the evidentiary record does not indicate that the Veteran submitted any correspondence or statement expressing an intent to appeal the March 2009 Rating Decision.  As such, the March 2009 denial of entitlement to service connection became final. 38 C.F.R. §§ 20.302, 20.1103.  

Finally, the Board finds that the AOJ's award of entitlement to service connection for PTSD, with an effective date of July 21, 2010, represents the earliest possible effective date for entitlement. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400  Applying the regulations discussed above, the effective date for a grant of service connection following a prior a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (2016).  As such, the AOJ assigned the earliest possible effective date for its grant of entitlement to service connection for PTSD. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003).  Thus, under the law, there is no basis to assign an earlier effective date for an award of entitlement to service connection for PTSD. 

Governing Laws and Regulations for Entitlement to Service Connection for a Bilateral Hearing Loss Disability:

The Veteran is seeking service connection for a bilateral hearing loss disability.  In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.  

Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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.  Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004).  When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  

Additionally, 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service.  Walker v. Shinseki, 708 F.3d 1331, 1335-37 (Fed. Cir. 2013).  Sensorineural hearing loss is an enumerated "chronic disease" listed under 38 C.F.R. § 3.303(a), therefore, 38 C.F.R. § 3.303(b) would apply if sensorineural hearing loss is noted or shown in the record.  Walker, 708 F.3d at 1338-39.  Service connection for an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38°C.F.R. §§ 3.307(a)(3), 3.309(a).

Based upon a review of the Veteran's military personnel records, and statements made to VA, the Board finds the Veteran served in a combat role during his active duty service.  Therefore, the provision of 38 U.S.C.A. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran.  The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service.  See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). 

In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value.  In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary and therefore the Board, must give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

Finally, entitlement to service connection for impaired hearing is subject to additional VA regulations.  Specifically, a hearing impairment constitutes a disability for VA purposes when 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.  38 C.F.R. § 3.385.  The Court has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss."  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

That being the relevant law applicable to the Veteran's claim, the Board observes that Veteran has been found to have a bilateral hearing loss disability for VA purposes.  Specifically, a C&P examination dated in October 2012 diagnosed the Veteran with bilateral sensorineural hearing loss.  The results of this examination are summarized in the chart below, with pure tone threshold recorded in decibels:    




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
35
35
35
LEFT
30
40
40
45
45

The Veteran was additionally administered the Maryland CNC word list, and was reported to have a speech recognition score of 96 percent in the right ear, and 100 percent in the left ear.  Therefore, the Board finds the Veteran has satisfied the first element of service connection, the existence of a current bilateral hearing loss disability.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.385; see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

The Board additionally finds that the Veteran was exposed to loud noises during his active duty service.  The Veteran's DD 214 reflects that his military occupational specialty ("MOS") was a "weapons infantryman."  The Department of Defense's Duty MOS Noise Exposure Listing indicates that an MOS as an infantryman, or rifleman, involved a "high" probability of nose exposure during service.  Additionally, the Veteran's DD-214 reports he received the sharpshooter and marksman badge, for the M14 and M16 rifles respectively.  As such, the Board finds the Veteran was exposed to acoustic trauma, in the form of loud noises, during his active duty service. 

Therefore, the primary question before the Board is whether the Veteran's in-service noise exposure caused his current bilateral hearing loss disability.  Throughout his appeal, the Veteran asserts his current bilateral hearing loss was caused by his exposure to excessive noise during service, including artillery shelling and machine gun fire.  As a lay person, the Veteran is competent to report what comes to him through his senses, such as experiencing difficulties hearing.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of sensorineural hearing loss.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Therefore, the Board must next evaluate the medical evidence, specifically the Veteran's service treatment records, to determine whether a nexus between his current bilateral hearing loss disability and his in-service noise exposure exists.  

The Veteran's service treatment records have been carefully reviewed and considered, but do not reflect he experienced any hearing loss during his active duty service.  Examinations from his enlistment and separation from service do not suggest the Veteran experienced hearing loss at the level considered a disability under VA regulations.    

Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association ("ASA").  Since November 1, 1967, those standards have been set by the International Standards Organization ("ISO")-the American National Standards Institute ("ANSI").  The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units.  Any military audiograms conducted prior to November 1967 must be converted from ASA to ISO units.  Essentially, that means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 500 Hertz and 5 decibels at 4000 Hertz.  Therefore, in order to facilitate data comparison in this decision, the Veteran's audiometric test results from his October 1966 entrance examination have been converted to ISO-ANSI standards, and are summarized in the chart below:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
X
-5
LEFT
5
0
0
X
-5

Thereafter, the Veteran was provided with an audiological examination in June 1969, prior to his separation from active duty service.  As this examination as administered after to November 1, 1967, the Veteran's audiometric test results were reported in the ISO-ANSI standards, and thus no conversion is required.  The results of this June 1969 separation examination are summarized in the chart below:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
X
15
LEFT
15
15
10
X
15

Thus, a review of the Veteran's entrance and separation audiological examinations fails to establish the presence of a bilateral hearing loss disability under the clear requirement of 38 C.F.R. § 3.385.  The Board does note, that a comparison of the October 1966 entrance examination to the June 1969 separation examination reveals shifts in pure tone thresholds, bilaterally, at all tested levels.

Despite a lack of an in-service diagnosis, under VA law, the Court has held section 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service.  See Hensley, 5 Vet. App. at 157; see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  In this regard, the Board notes that the Veteran's post-service medical records show he was treated for symptoms of hearing loss and that he has been subsequently diagnosed with a bilateral sensorineural hearing loss disability.  See e.g. October 2012 C&P Examination. 

With regard to a nexus, the Board is aware the record contains an unfavorable medical opinion from the October 2012 C&P examination.  However, as will discussed in further detail below, the Board finds the examiner's conclusion is not entitled to significant weight. 

In pertinent part, the October 2012 examiner opines that the Veteran's current bilateral hearing loss disability is less likely than not related to his active duty service.  In support of this conclusion, the examiner cites to the lack of medical evidence within the Veteran's service medical records showing any treatment for or complaints of hearing loss.  However, the absence of an in-service diagnosis does not necessarily bar the Veteran from establishing a nexus to his active duty service.  See Hensley, 5 Vet. App. at 157; see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

The Board does, however, find some circumstantial evidence supporting a finding of a nexus.  Notably, the October 2012 examiner explained that the Veteran's current hearing loss disability was less likely than not related to his military service, because "noise only affects hearing when the noise occurs and does not have a continuing or progressive effect."  Without commenting on whether acoustic trauma would impose a "continuing or progressive effect," the Board does observe that the Veteran experienced shifts in his puretone thresholds, when comparing the October 1966 entrance examination to the June 1969 separation examination.  Therefore, the Board finds it reasonable to conclude these shifts in pure tone thresholds provides circumstantial evidence of an in-service occurrence of a bilateral hearing loss disability. See Hensley, 5 Vet. App. at 159-60 (holding that a significant decibel increase in pure tone thresholds during service is an important factor for determining an in-service incurrence, even if these shifts do not demonstrate a hearing loss disability under § 3.385).

Additionally, and as noted briefly above, the Veteran's military personnel records indicate that he was involved in combat during his active duty service.  See e.g. October 2010 Correspondence, where Veteran reports he was involved in two combat missions; see also DD-214, showing receipt of Vietnam Service Medal, with two Bronze Stars, among other badges.  As such, resolving all doubt in the Veteran's favor, the Board finds that the Veteran would be entitled to the provisions/presumptions under of 38 U.S.C.A. § 1154(b). The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service.  See Reeves, 682 F.3d at 999.  Furthermore, if in-service hearing loss, as opposed to acoustic trauma, is established by way of the statutory combat presumption, then the Veteran would only be required to show that his hearing loss disability was a chronic condition that persisted beyond his active duty service.  Id. 

Applying the Federal Circuit decision in Reeves to this case, the Veteran's assertions based on his combat service establish (1) the cause of the Veteran's current disability, i.e. his exposure to mortar fire and machine gun fire, and (2) that he incurred a bilateral hearing loss disability during his active duty service.  Therefore, the Veteran must only show evidence that his bilateral hearing loss disability persisted beyond his military service.  

In statements to the Board, the Veteran contends that his hearing loss has continued since his separation from active duty service.  See e.g. December 2016 Testimony.  Post-service, the Veteran was diagnosed with sensorineural hearing loss.  See October 2012 C&P Examination.  Sensorineural hearing loss is enumerated as a "chronic disease" listed under 38 C.F.R. § 3.303(a), and is thus entitled to presumptive service connection under 38 C.F.R. § 3.303(b).  Under the plain language of § 3.303(b), the Federal Circuit has held that there is a presumption of service connection for a chronic disease (rebuttable only by "clearly attributable intercurrent causes"), which manifests during service and then again "at any later date, however remote."  See Grovesv. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008).  As such, there is sufficient evidence to award the Veteran entitlement to service connection for a bilateral sensorineural hearing loss disability.  

In light of the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that service connection for a bilateral hearing loss disability is warranted.  As discussed above, the Veteran currently has bilateral hearing loss which constitutes a disability under VA regulations.  See October 2012 C&P Examination.  Throughout his appeal, the Veteran has asserted that his exposure to loud noises during his military service, to include his combat with the enemy, caused him to develop a hearing loss disability.  See Reeves, 682 F. 3d at 99; see also 38 U.S.C.A. § 1154(b).  As for the medical evidence, the Board finds the October 2012 audiologist's opinion provides sufficient circumstantial evidence establishing a nexus between the Veteran's in-service noise exposure and bilateral ear hearing loss.  Therefore, the Board finds the medical and lay evidence of record contains sufficient evidence to establish a nexus between the Veteran's current bilateral hearing loss disability and his in-service noise exposure. 


ORDER

Entitlement to an effective date prior to July 21, 2010, for the grant of service connection for PTSD, is denied. 

Subject to the provisions governing the award of monetary benefits, service connection for a bilateral hearing loss disability is granted.


REMAND

Although the Board sincerely regrets the additional delay, the Veteran's claim must be remanded in order to ensure that VA has adequately assisted the Veteran in the development of his claims. 

First, the Board notes that the Veteran has made numerous comments to his treatment providers about being in receipt of disability payments from the Social Security Administration.  See e.g. February 2011 C&P Examination; see also Durham VAMC Records. Unfortunately, the records from the Veteran's SSA benefits, including his application, determination, and any records upon which the determination was made, are not yet of record.  As such, remand is required to obtain these records and associate them with the claims file.  See 38 U.S.C. § 5103A(c)(3); 38 C.F.R. § 3.159(c); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).

The Board finds that these records are relevant to the Veteran's claims for increased ratings of his PTSD and entitlement to an earlier effective date for award of a TDIU.  Specifically, the Veteran has alleged an inability to work due to the symptoms of his PTSD.  The Veteran has alleged his PTSD symptoms rendered him unemployable beginning on and after July 21, 2010, the date on which he was awarded entitlement to service connection for PTSD.  See e.g. February 2014 Notice of Disagreement.  In light of these allegations, the Board finds that the AOJ must obtain the Veteran's records from SSA, as they are relevant to his appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992).    

Second, the Board finds the AOJ must obtain the most recent records of the Veteran's VA medical treatment.  During the Veteran's December 2016 video hearing, he testified about receiving VA treatment for his skin disability during the summer of 2016.  After reviewing the Veteran's available VA treatment records, the Board observes they are current only through 2013.  VA's duty to assist includes obtaining records of relevant VA medical treatment.  38 U.S.C.A. §5103A(c)(2);  8 C.F.R. § 3.159(c)(2), (c)(3).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA).  Therefore, the AOJ should obtain the most recent copies of the Veteran's VA treatment records.  The Veteran should be contacted for any additional clarification as to dates and locations of treatment. 
 
Third, the Board finds the AOJ has not met its burden to assist the Veteran in development of his claim for entitlement to service-connection for hepatitis-C.  For service connection claims, VA is obliged to provide an examination or obtain a medical opinion in a claim when (1) the record contains competent evidence that the claimant has a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to make a decision on the claim.  See 38 U.S.C.A. § 5103A (d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for finding a link between current disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.  

The Veteran alleges he contracted hepatitis-C during his active duty service.  Specifically, the Veteran says his current diagnosis for hepatitis-C is a result of contaminated air guns used to administer vaccinations.  Despite these assertions, and the Veteran's post-service treatment for hepatitis-C, the Board finds the AOJ must provide a VA examination and medical opinion.  

Finally, the Board finds the AOJ must provide the Veteran with updated VA examinations to assess the severity of his service-connected PTSD and skin disabilities.  During the December 2016 hearing, the Veteran testified that both disability have worsened, resulting in an overall increase in his disability.  As such, the Board finds the Veteran should be afforded new VA examinations to determine the current severity of his service-connected PTSD and skin disabilities.  See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991).  

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers.  The AOJ should obtain the Veteran's most recent treatment records from the Durham VAMC and associate them with the claims file. 

Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c).  If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e).

2.  The AOJ should then obtain any records from the Social Security Administration, to include any award of disability benefits and any underlying records used in reaching the determination.  

The AOJ should ensure that any and all administrative determinations made by SSA, including any examinations furnished by SSA, are requested.

All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available.

3. After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a VA examination, to determine the etiology and severity of his hepatitis-C disability.  

The electronic claims file must be provided to and reviewed by the examiner in conjunction with the examination.  All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail.  

Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following question:

(a)  Whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any diagnosed hepatitis C disability is related to the Veteran's active military service, to include the Veteran's contention that he contracted hepatitis-C disease through air gun inoculations he received during service? 

If the examiner determines that s/he cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, s/he should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of the diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definitive opinion can be obtained.)

4.  After any additional records are associated with the claims file, the AOJ should schedule the Veteran for a VA examination, to determine the current severity of his PTSD disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner.

The examiner should provide a full description of the effects of the Veteran's PTSD disability on his ability to perform ordinary activities over the course of the appeal period.  The examiner should also fully describe the impact the Veteran's PTSD disability has had on his economic adaptability over the course of the appeal period, specifically the time period beginning on and after July 21, 2010.

The examiner is asked to provide a thorough explanation of the rationale underlying any and all opinions or conclusions expressed.

5.  The AOJ should additionally schedule the Veteran a VA examination with a dermatologist to determine the nature and severity of his service-connected skin rash.  The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination.  All pertinent symptomatology and findings must be reported in detail.  Any necessary diagnostic testing must be conducted.

The examiner should indicate the percentage of the total body surface area and total exposed body surface area affected, the duration of any topical or systemic therapy during the past 12 month period, the nature and number of any residual scars attributable to the Veteran's service connected skin rash, and any functional impairment caused by the Veteran's skin rash or residuals thereof.

6.  The AOJ should notify the Veteran that it is his responsibility to report for the scheduled VA examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655.  In the event that the Veteran does not report for any scheduled VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

7.  After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

8.  Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claims on appeal.  If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and his representative an opportunity to respond.

The appellant 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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs