Citation Nr: 1752425	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  14-22 927	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to an effective date earlier than December 7, 2016 for the grant of a 100 percent disability evaluation for an acquired psychiatric disorder. 

3. Entitlement to service connection for a stomach disorder, to include as secondary to an acquired psychiatric disorder.

4. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Douglas Sullivan, Attorney



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Wozniak, Associate Counsel


INTRODUCTION

The Veteran served in the U.S. Coast Guard from April 1988 to May 1989.

This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of the Montgomery, Alabama, and the New Orleans, Louisiana Regional Offices (RO). In February 2016, the Board reopened the Veteran's claim of service connection for a psychiatric disorder and remanded the appeal to the RO for additional development.

Applicable regulations provide that evidence received within the one year period prior to a rating decision becoming final is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2017). In such situations, the applicable rating action will not become final, and any subsequent decision based on such evidence will effectively be considered as part of the original claim. Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). The April 2010 rating decision did not therefore become final. Accordingly, the claim on appeal stems from that April 2010 rating decision. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

In November 2015, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for an acquired psychiatric disorder; a stomach disorder, including as secondary to an acquired psychiatric disorder; and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Bilateral hearing loss did not originate in active service, was not caused by active service, was not aggravated by active service, and did not manifest to a compensable degree within one year of service separation.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C.A. § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017).

An organic disease of the nervous system including sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b).

Service treatment records do not refer to impaired hearing or indicate hearing loss. The Veteran's entrance examination notes normal ears and no use of a hearing aid. In March 1988, the report of the Veteran's physical examination for service entrance stated that he exhibited pure tone thresholds in decibels, as follows:




HERTZ



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

The Veteran's separation examination indicates the Veteran had no hearing loss and did not wear a hearing aid but did note problems with his ear, nose and throat. The May 1989 report of the Veteran's physical examination for service separation indicates that pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
0
0
0
LEFT
10
10
0
5
5

In a December 2003 private medical record, the Veteran's physical examination indicated his ears were "normal" and a January 2012 private medical record indicates the Veteran had normal conversational hearing. 

In the Veteran's November 2015 hearing testimony he indicated that he was exposed to noise in the engine room of the ship and while qualifying to fire small arms. 

In December 2016, the Veteran was afforded a VA audiological examination. During this examination, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
15
20
LEFT
5
10
5
15
20

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear. Based on these results, the VA examiner concluded the Veteran had bilateral sensorineural hearing loss in the frequency range of 6000 Hz or higher. The examiner noted that this type of hearing loss does not meet the criteria to be considered a disability for VA purposes. The examiner noted no functional impairment or threshold shifts in hearing during service.

The Veteran contends that his bilateral hearing loss began during active service. However, the Veteran's hearing loss does not meet the minimum requirements for service-connection under 38 C.F.R. § 3.385 (2017). Therefore, the service connection claim for bilateral hearing loss is denied.


ORDER

Service connection for bilateral hearing loss is denied.


REMAND

The Veteran through counsel has filed a notice of disagreement as to a rating decision in March 2017, granting service connection for an acquired mental disorder and establishing the effective date of a 100 percent evaluation, both as to December 7, 2016. A Statement of the Case must be issued. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board's jurisdiction is triggered by the timely filing of a notice of disagreement.

The Veteran's claims for stomach disorder, to include as secondary to an acquired psychiatric disorder and TDIU are inextricably intertwined with his claims for service connection for an acquired psychiatric disorder. Therefore, a determination as to whether the Veteran is entitled to service connection for an acquired psychiatric disorder must be made prior to reaching a decision on his claim for  a stomach disorder or TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

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.)

Issue a Supplemental Statement of the Case to the Veteran for the issues of acquired psychiatric disorder, stomach disorder, to include as secondary to an acquired psychiatric disorder, and entitlement to a total disability rating based on individual unemployability (TDIU) and conduct any further appellate proceedings. Return the case to the Board if the issue is not resolved to the Veteran's satisfaction. 

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).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs