Citation Nr: 1751625 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-26 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service-connection for Parkinson's disease. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. 3. Entitlement to service-connection for bilateral hearing loss. 4. Entitlement to service-connection for tinnitus. 5. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated 30 percent prior to September 24, 2012, and 70 percent from September 24, 2012. 6. Entitlement to higher staged initial ratings for coronary artery disease, currently rated 10 percent from July 24, 2009 through July 11, 2011, 30 percent from July 12, 2011 through September 23, 2012, and 60 percent from September 24, 2012. 7. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), prior to September 24, 2012. REPRESENTATION Veteran represented by: Robert P. Walsh, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from January 1969 and December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2010, February 2011 and October 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The October 2010 rating decision granted service connection for coronary artery disease and assigned a 10 percent evaluation effective July 24, 2009 and continued a 30 percent evaluation for PTSD. A February 2011 rating decision denied service connection for bilateral hearing loss and tinnitus and an October 2012 rating decision denied service connection for Parkinson's disease and entitlement to a TDIU. Thereafter, a separate October 2012 rating decision granted a 70 percent evaluation for PTSD effective September 24, 2012, a 30 percent evaluation for coronary artery disease effective July 12, 2011 and an evaluation of 60 percent from September 24, 2012 and also granted entitlement to a TDIU effective September 24, 2012. Because these increased evaluations do not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's claims remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993) In March 2012, the Veteran and his spouse testified at a hearing before a Decision Review Officer, and in May 2017, they testified at a Board hearing before the undersigned Veterans Law Judge. The hearing transcripts are of record and the May 2017 Board hearing transcript reflects the record was held open for 60 days from the date of the hearing to allow the Veteran to submit additional evidence. In September 2017, the Veteran submitted additional evidence, consisting of an employment questionnaire which reflected continued unemployment, and although the Veteran did not waive consideration of such by Agency of Original Jurisdiction (AOJ), such is duplicative of prior evidence of record which reflected the Veteran was unemployed. See 38 C.F.R. § 1304 (c) (2016). The issues of entitlement to increased evaluations for PTSD and coronary artery disease, and entitlement to a TDIU prior to September 24, 2012 are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. During the May 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran's authorized representative, in conjunction with the Veteran, requested withdrawal of the appeal for entitlement to service-connection for Parkinson's disease. 2. A March 1971 rating decision, in part, denied entitlement to service connection for bilateral hearing loss, no appeal was taken from that determination, and new and material evidence was not received within one year thereafter. 3. Evidence received subsequent to the March 1971 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss; and raises a reasonable possibility of substantiating the claim. 4. Resolving all doubt in his favor, the Veteran's bilateral hearing loss and tinnitus are as likely as not related to his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service-connection for Parkinson's disease have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2015); 38 C.F.R. § 20.204 (2016). 2. The March 1971 rating decision, which denied entitlement to service connection bilateral hearing loss, is final. 38 U.S.C.A. § 7105 (c) (West 2015); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016). 3. New and material evidence sufficient to reopen the previously denied claim of service connection for bilateral hearing loss has been received. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. §§ 3.156 (a), 20.1105 (2016). 4. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 5. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, given the withdrawal of his appeal seeking service-connection for Parkinson's disease and the grant of service connection for bilateral hearing loss and tinnitus, discussion of the impact of VA's statutory and regulatory notice and duty to assist provisions on these issues, including pursuant including pursuant to 38 C.F.R. § 3.103 (c)(2) (2016) and Bryant v. Shinseki, 23 Vet App 488 (2010), is not necessary, and any deficiencies, if any exist, are harmless. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). I. Withdrawal of Parkinson's Disease Under 38 U.S.C.A. § 7105 (West 2015), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202 (2016). During the May 2017 Board hearing, prior to a Board decision as to this issue on appeal, the Veteran's representative, in conjunction with the Veteran, withdrew the appeal as to the issue of entitlement to service connection for Parkinson's disease. 38 C.F.R. § 20.204 (2016). As the Veteran clearly requested withdrawal of his appeal as to entitlement to service connection for Parkinson's disease, there remain no allegations of error of fact or law for appellate consideration with regard to this issue. Accordingly, it is therefore dismissed. II. New and Material Evidence Hearing Loss The claim for service connection for bilateral hearing loss was initially denied in a March 1971 rating decision. The March 1971 rating decision denied the claim, in part, as the Veteran did not report for an audiological examination and it was determined that hearing loss could not be evaluated without a current audiology examination. The Veteran did not submit a timely notice of disagreement with respect to the March 1971 rating decision and new and material evidence was not received during the appeal period. Thus, the March 1971 rating decision is final. 38 U.S.C.A. § 7105 (c) (West 2015); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016). The Board must determine whether new and material evidence has been presented before it can reopen a claim to re-adjudicate the issue going to the merits. 38 C.F.R. § 20.1105 (2016). VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, at 118 (2010). New evidence associated with the record since the March 1971 rating decision includes additional VA medical records, a January 2011 audiological examination report, additional private medical records, records from the Social Security Administration, additional statements from the Veteran and March 2012 and May 2017 testimony from the Veteran and his spouse. In particular, the Board finds the January 2011 VA examination report is new evidence because it was not previously before VA decision makers. Additionally, the January 2011 VA examination report is material, because the January 2011 audiometric testing revealed that the Veteran had hearing loss disability for VA purposes in both ears. As noted above, the March 1971 rating decision denied the claim in part, as hearing loss could not be evaluated without a current audiology examination. Thus, the evidence relates to an unestablished fact necessary to substantiate the claim, and it raises a reasonable possibility of substantiating the claim. Accordingly, entitlement to service connection for bilateral hearing loss is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). II. Service Connection for Bilateral Hearing Loss and Tinnitus Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303 (2016). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present 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). In addition, certain chronic diseases, such as sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2015); 38 C.F.R. §§ 3.307, 3.309 (2016). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that he has bilateral hearing loss and tinnitus as a result of noise exposure during active service. Specifically, in May 2017 testimony, the Veteran asserted he experienced noise exposure during service as his military occupational specialty (MOS) was rifleman and he had noise exposure from M16 and M60 machine guns, a M79 grenade launcher, hand grenades, and claymore mines. Turning to the first element of service connection, the existence of a present disability, the Board finds that the evidence of record confirms the Veteran has bilateral hearing loss disability for VA purposes. The Veteran was afforded a VA audiological examination in January 2011. The January 2011 VA examiner provided diagnoses of bilateral sensorineural hearing loss and tinnitus. Additionally, January 2011 audiometric testing revealed that the Veteran had hearing loss disability for VA purposes in both ears. 38 C.F.R. § 3.385. Thus, the current disability element for bilateral hearing loss and tinnitus is established by the evidence. The Board will accordingly consider whether the Veteran's present bilateral hearing loss disability and tinnitus were incurred during or is related to service. Preliminarily, the Board notes that the Veteran, in a September 1968 Report of Medical History, part of a pre-induction examination, indicated the existence of hearing loss and tinnitus. A September 1968 pre-induction examination report did indicate an issue with perforated ear drums, and September 1968 audiometric testing demonstrated a degree of hearing loss per Hensley v. Brown, 5 Vet. App 155 (1993) when converted to International Standards Organization-American National Standards Institute (ISO-ANSI) units, as it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or ISO-ANSI units. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. However, the September 1968 audiometric findings did not meet the definition of hearing loss disability for VA purposes under 38 C.F.R. § 3.385 under ASA standards or ISO-ANSI standards, and neither hearing loss nor tinnitus was otherwise identified as a defect and/or diagnosis during the September 1968 examination, so the presumption of soundness applies. See McKinney v. McDonald, 28 Vet. App. 15 (2016). The Board will accordingly consider whether the Veteran's present hearing impairment and tinnitus were incurred during or is related to service. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. In this regard, a July1970 service treatment record noted, in part, a complaint of progressive hearing loss and difficulty hearing the spoken voice; however, the record further noted that audiometry on the induction physical was normal and the Veteran reported drainage and repeated noise trauma to both ears. The July 1970 service treatment record further noted, in part, an impression of mild sensorineural hearing loss and an H-2 profile. Thereafter, a November 1970 service treatment record further noted that, in part, that Veteran experienced chronic ear problems including infection, loss of hearing and perforation. The Veteran's remaining service treatment records do not reference noise exposure, hearing loss or tinnitus. However, the Veteran's DD 214 documents his MOS was light weapons infantry and he was awarded, in part, the Vietnam Service Medal, Combat Infantryman's Badge, and the Republic of Vietnam Campaign Medal 2 O/S Bars. Thus, based on this information, the Veteran's contentions of noise exposure during service in Vietnam are deemed consistent with the circumstances and conditions of his service, and thus, are established by the evidence. 38 U.S.C.A. § 1154 (b) (West 2015). Finally, the Board finds, for the reasons noted below, that the third requirement for service connection, competent evidence of a nexus between the Veteran's bilateral hearing loss disability and tinnitus, and an in-service disease or injury, has also been met. As to the origin of the Veteran's hearing loss, the January 2011 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus were not at least as likely as not caused by or due to military noise exposure. In part, the January 2011 VA examiner found the degree of hearing loss was consistent with the aging process for the right ear and the degree of hearing loss for the left ear was consistent with noise induced hearing loss and the aging process. The January 2011 VA examiner found it was apparent that Veteran had a pre-existing ear condition for the right ear and suffered no recurrence or aggravation during military service or following military service. The January 2011 VA examiner further found that bilateral hearing loss and tinnitus were more likely than not related to Veteran's 30 year history of vocational noise exposure as a machinist as all requests for additional service-connected conditions were silent for hearing loss or tinnitus until most recently in 2010. The January 2011 examination report and opinion tends to weigh against the claims; however, evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet App. at 159. Furthermore, the January 2011 VA examination report provided contradictory findings inasmuch as the report indicated right ear hearing loss both did and did not pre-exist service. Additionally, the January 2011 VA examination report, in part, noted as part of the rationale, the Veteran filed a claim for hearing loss in 2010; 40 years post military service; however, in December 1970 shortly after separation from service, the Veteran, in part, did file an application for service connection for bilateral hearing loss. Moreover, notably, during the January 2011 examination, the Veteran reported service as a military rifleman and described one incident of acoustic and ear trauma when a helicopter propeller dislodged from a helicopter, and propelled over the Veteran's head, resulting in a right ear bleed from a pressure concussion. He also, in part, described a history of four to five ear infections during military service in Vietnam and sudden hearing loss frequently during firefights. During the January 2011 examination, the Veteran also reported employment as a machinist and that he operated lathes mills and grinders but was adamant that he utilized hearing protection because of his previous experience in Vietnam. Such is supported by the Veteran's March 2012 testimony, in which the Veteran reported his post-service employment shop was a union shop and was very strict on wearing earplugs. In May 2017 testimony, the Veteran also reported since his combat experiences he has had trouble with buzzing and ringing in his ears, although the Board recognizes a February 1971 VA examination report, in part noted a prior right ear infection but the Veteran's ears did not ring. However, such evidence does demonstrate the Veteran experienced continuing problems with his ears. Furthermore, as noted above, the Veteran filed a claim for bilateral hearing loss in December 1970 and also of record is a December 1970 VA treatment record, which noted in part, right ear impaired hearing. The Veteran is competent to testify as to observable symptoms such as hearing difficulty and ringing in the ears, because these symptoms are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's testimony and statements regarding the onset of his symptoms pertaining to his hearing difficulty and tinnitus to be credible and they are accorded significant evidentiary weight. At the least, this evidence raises a reasonable doubt as to whether the Veteran's current bilateral hearing loss and tinnitus are etiologically related to noise exposure in service. The evidence shows that the Veteran presently has bilateral hearing loss disability and tinnitus, and competent and credible lay evidence of diminished hearing and tinnitus since service. Thus, resolving doubt in the Veteran's favor, the Board finds the Veteran's bilateral hearing loss and tinnitus are in fact related to service. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for bilateral hearing loss and tinnitus is warranted. ORDER The appeal for entitlement to service connection for Parkinson's disease is dismissed. New and material evidence having been received, the claim for service connection for bilateral hearing loss, is reopened, and to that extent only, the appeal is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMAND The Board finds that the Veteran's remaining claims must be remanded for further development before a decision may be made on the merits. In this regard, in the record reflects the existence of VA treatment records not associated with the claims file. Specifically, in May 2017, the Veteran testified he was currently under care of a psychiatrist at the Battle Creek VA Medical Center (VAMC) who prescribed him medication. In this regard, the most recent VA treatment records associated with the record within Virtual VA, from the Battle Creek VAMC, are dated in October 2012. Thus, on remand, the Veteran's updated VA treatment from the Battle Creek VAMC, since July 2012, should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A (c); 38 C.F.R. § 3.159 (c)(2); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). In addition, in May 2017 testimony, the Veteran reported that in 2010 and in 2013 he received stents at the Borgess Medical Center (spelled phonetically as Borges in the Board hearing transcript) in Kalamazoo, Michigan, and although records from February 2012 are of record, records from 2010 or 2013 are not of record. Thus, on remand, Veteran should be afforded another opportunity to submit copies of these identified records, from Borgess Medical Center in Kalamazoo, Michigan, or any other relevant records, to VA, or complete authorization forms permitting VA to obtain these records on his behalf. 38 U.S.C.A. § 5103A (b); 38 C.F.R. § 3.159 (c)(1). Furthermore, any additional development should be completed, to include affording the Veteran new PTSD and/or coronary artery disease VA examinations, if warranted by any newly obtained additional evidence, as the Veteran's most recent PTSD disability benefit questionnaire and ischemic heart disease benefit questionnaires were each obtained in September 2012. Finally, the issue of entitlement to a TDIU prior to September 24, 2012 is intertwined with the claims for increased ratings for PTSD and coronary artery disease, and thus the TDIU claim must be remanded to await the outcome of these claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's updated VA treatment records, to include since October 2012, from Battle Creek VAMC, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Contact the Veteran and request that he provide the names and addresses of all providers of medical treatment for his coronary artery disease, to include treatment from the Borgess Medical Center in Kalamazoo, Michigan, in 2010 and 2013, as referenced in his May 2017 hearing testimony. After obtaining the necessary authorization from the Veteran, attempt to obtain any additional relevant records identified. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 3. Finally, after undertaking any other development deemed appropriate, to include additional VA examinations if warranted based on any new evidence received, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2015). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs