Citation Nr: 1751278	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  13-28 846	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to an evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Rutkin, Counsel



INTRODUCTION

The Veteran served on active duty from June 1965 to November 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont.  This is case is currently under the jurisdiction of the RO in St. Petersburg, Florida.  The Board remanded this case in June 2015. 

The issue of entitlement to an increased rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran's right ear hearing loss is linked to noise exposure during active service.

2.  The Veteran does not have a left ear hearing loss disability. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for right ear hearing loss are satisfied.  38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

2.  The criteria for service connection for left ear hearing loss are not satisfied.  38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Law

Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a).  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).  

To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 252 (1999).  

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  


II. Analysis

Hearing loss qualifies as a disability for VA compensation purposes 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 (2012).  The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

A current hearing loss disability is not established for the left ear.  The November 2015 VA examination report shows that Veteran's left ear puretone thresholds are not 40 decibels or higher at any of the relevant frequencies, or 26 decibels or higher at three or more of the relevant frequencies.  The speech recognition score for the left ear was 96 percent.  Accordingly, the preponderance of the evidence weighs against a current hearing loss disability in the left ear.  See 38 C.F.R. § 3.385.  In the absence of a current disability, service connection cannot be awarded.  See Holton, 557 F.3d at 1366; Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).  

A current hearing loss disability is established for the right ear, based on the puretone threshold of 40 decibels at 4000 Hertz shown in the November 2015 VA examination report.  

The Veteran's report of noise exposure from proximity to combat and rocket attacks, and being a crewmember on C-124 aircraft while serving in Vietnam is consistent with the circumstances of his service.  Therefore, in-service noise exposure is established. 

The evidence is at least in equipoise regarding a link between the Veteran's current right ear hearing loss disability and his noise exposure during service.  In a September 2006 VA examination report, the VA examiner opined that it was at least more likely than not that the Veteran's right ear hearing loss was due to in-service noise exposure due to the notch configuration suggestive of noise-induced etiology and the fact that the Veteran did not have significant noise exposure after service.  In the November 2015 VA examination report, the examiner opined that the Veteran's right ear hearing loss was less likely than not related to service because the service audiograms showed normal hearing at the time, and based on consulted medical literature, a noise-induced hearing loss will not progress once it is stopped.  In other words, the examiner found that if the Veteran's hearing loss were related to noise exposure during service, it would have been present at the time of audiometric testing during service, and thus registered in the results of such testing.  

The Board resolves reasonable doubt in favor of the claim.  See 38 C.F.R. § 3.102.  The positive opinion rendered by the September 2006 VA examiner did not turn on whether the in-service audiograms were normal, but instead on the fact that the configuration of right ear hearing loss indicated that it was caused by noise exposure, and that the Veteran's only known history of significant noise exposure was during service.  The examiner stated that the claims file was reviewed, and thus the examiner was presumably aware of the normal audiograms during service.  As the two VA opinions are of relatively equal probative weight, the Veteran is entitled to the benefit of the doubt.  See id.; 38 U.S.C.A. § 5107. 

In sum, service connection for right ear hearing loss is granted.  As the preponderance of the evidence is against the claim for left ear hearing loss, the benefit-of-the-doubt rule does not apply.  See id. 


ORDER

Service connection for right ear hearing loss is granted. 

Service connection for left ear hearing loss is denied.


REMAND

The Board sincerely regrets the delay, but the claim for a higher rating for PTSD must be remanded again for further development.  Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration.

In the November 2015 VA examination report, the examiner found that the Veteran's PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or that symptoms were controlled by medication.  However, no explanation was provided, including a discussion of how the Veteran's PTSD symptoms affect his ability to work.  Notably, the examiner found that the Veteran's PTSD symptoms include disturbances of motivation and mood, which is a symptom corresponding to a 50 percent rating.  See 38 U.S.C.A. § 4.130 (2017).  Thus, an explanation should be obtained from that examiner. 

Accordingly, the case is REMANDED for the following action:

1. Add any recent outstanding VA treatment records to the claims file. 

2. Request the examiner who conducted the November 2015 VA examination to provide an explanation for the finding that the Veteran's PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  In this regard, the examiner is asked to provide a more specific discussion of how the Veteran's PTSD symptoms affect his occupational functioning.  Although the Veteran is retired, the examiner should base the opinion on the recent clinical findings.  

If the supplemental opinion cannot be obtained from the November 2015 VA examiner within a reasonable time frame, the opinion may be provided by a different qualified medical professional.  In such a case, if deemed necessary by the clinician rendering the opinion, or if otherwise in order, a new examination should be arranged. 

3. Then, after completing any other development that may be indicated, readjudicate the claim.  If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).



______________________________________________
P. M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs