Citation Nr: 1754483	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  14-12 793 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to service connection for pain in joints.

2. Entitlement to service connection for a blood disorder.

3. Entitlement to service connection for hearing loss.

4. Entitlement to service connection for tinnitus.

5. Entitlement to service connection for posttraumatic stress disorder (PTSD).



REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Amanda Baker, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1965 to November 1967, to include combat service as discussed below.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

In March 2017, the Veteran was afforded a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.

The issue of entitlement to service connection 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. Prior to the promulgation of a decision by the Board, during the May 2017 Board videoconference hearing the Veteran expressed the desire to withdraw the appeal as to the issues of entitlement to service connection for pain in joints and a blood disorder.
2. The evidence is at least evenly balanced as to whether hearing loss is related to in-service acoustic trauma.

3. The evidence is at least evenly balanced as to whether tinnitus is related to in-service acoustic trauma.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal regarding the issue of entitlement to service connection for pain in joints, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2. The criteria for withdrawal of an appeal regarding the issue of entitlement to service connection for a blood disorder, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

3. With reasonable doubt resolved in favor of the Veteran, hearing loss was incurred in service.  38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017).

4. With reasonable doubt resolved in favor of the Veteran, tinnitus was incurred in service.  38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Dismissal

The Veteran's perfected appeal included claims for service connection for pain in joint and a blood disorder, but the Veteran and his representative expressly withdrew the appeal of these claims on the record during the March 2017 Board videoconference hearing.

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C. § 7104; 38 C.F.R. § 20.101.  Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made in writing or on the record at a hearing by the appellant or by an authorized representative.  38 C.F.R. § 20.204.

Inasmuch as the Veteran has withdrawn his appeal for service connection for pain in joins and a blood disorder, there is no allegation of error of fact or law in the matters remaining before the Board.  Hence, the Board does not have jurisdiction to consider an appeal in these matters, and the appeal seeking service connection for pain in joins and a blood disorder, must be dismissed.

I. Service Connection

Initially, the Board finds that VA has satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000.  See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the appeal given the fully favorable nature of the Board's decision with regard to this claim.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287   (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  

Sensorineural hearing loss and tinnitus are considered chronic diseases under 38 C.F.R. § 3.309(a), as organic diseases of the nervous system. VA Adjudication Manual Rewrite, M21-1MR III.iv.4.B.12.a (June 5, 2012) ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R.  3.309 (a)"); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (tinnitus is an organic disease of the nervous system). If a chronic disease manifests to a compensable degree within one year after separation from service, it may be presumed to have been incurred during service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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.

When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service."  38 U.S.C. § 1154(b).  This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service.  Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). 

On September 2011 VA examination, audiometric tests showed thresholds of at least 40 decibels in at least one of the frequencies in each ear.  The Veteran has thus met the current disability requirements for his hearing loss claim.

Additionally, tinnitus is capable of lay observation, and the Veteran has offered competent, credible testimony that he experiences tinnitus.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, he has met the current disability requirement.

The Veteran claims to have continuous hearing loss and tinnitus in and since service.  He attributes these disabilities to high level noise exposure during service.  At the March 2017 hearing, he reported working as a combat engineer building bridges, roads, and airstrips during service.  He reported noise exposure due to artillery fire, building bridges, and flying in airplanes.

Service treatment records contain audiometric tests on September 1965 induction and October 1967 discharge from service.  Both tests showed hearing within normal limits.

The Veteran was afforded a VA examination in September 2011.  A diagnosis of sensorineural hearing loss was provided.  A review of the claims file was noted.  The examiner opined that the Veteran's hearing loss was not related to service.  As rationale, the examiner referenced audiometric tests at induction and discharge showing hearing within normal levels.  As for tinnitus, the examination report documented the Veteran's report of recurrent tinnitus.  The examiner opined that the Veteran's tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with his hearing loss.  The examiner further opined that tinnitus is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure.  As rationale, the examiner stated that the Veteran has no idea when his tinnitus began. 

The Veteran's DD-214 indicates that his military occupational specialty was a bridge specialist and he is a recipient of the National Defense Medal, Vietnam Campaign Medal, and Vietnam Service Medal.  These medals do not by themselves indicate that the Veteran engaged in combat with the enemy.  VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated September 11, 2015).  However, during the March 2017 hearing, he gave detailed testimony about coming under enemy fire which indicates that he participated in events constituting an actual encounter with a military foe.  Given the places, types, and circumstances of the Veteran's service, including his military occupation specialty and service in Vietnam, the Board finds the Veteran's testimony competent and credible, establishing that he engaged in combat with the enemy.  See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service); 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).

Based on the Veteran's statements, VA examination, and by applying 38 U.S.C. § 1154(b), the Board concludes that the Veteran sustained acoustic trauma during combat operations.  The remaining issue is whether current hearing loss and tinnitus disabilities are related to the acoustic trauma.  

The fact that the claimed cause of the Veteran's hearing loss and tinnitus, i.e., acoustic trauma, is therefore established by his testimony, does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service.  Reeves, 682 F.3d at 999.

The Board finds that, given the application of 38 U.S.C. § 1154(b) as explained in Reeves, the Veteran's lay testimony along with the other evidence above provides a sufficient basis to conclude that his current hearing loss and tinnitus disabilities are related to the acoustic trauma he suffered in service.  The Board acknowledges the September 2011 VA examiner's opinion that the Veteran's hearing loss is not related to service because audiometric tests during service showed hearing within normal limits.  The Board finds that this opinion is flawed because it largely relied on the absence of medical evidence in reaching its conclusion and failed to discuss the Veteran's complaints of continuous hearing loss due to noise exposure during combat service.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence").  The absence of complaints in the service treatment records is irrelevant to consideration of whether this combat Veteran incurred a hearing loss disability in service, as the combat provisions of 38 U.S.C. § 1154(b) exists precisely because the absence of medical records is expected due to combat conditions.  Reeves, 682 F.3d at 998 (Congress enacted the combat provisions of 1154(b) because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service.  H.R. Rep. No. 1157, at 3 (1941)).  In many instances, medical records do not survive combat conditions.  Id.  Further, at the March 2017 hearing the Veteran claimed that he did not have an audio test on separation.  The Veteran has credibly and consistently asserted that he experienced hearing loss and ringing in his ears since service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).

The evidence is, thus, at least evenly balanced as to whether the Veteran's current hearing loss and tinnitus disabilities are related to service.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for hearing loss and tinnitus is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

The appeal of service connection for pain in joints, having been withdrawn, is dismissed.

The appeal of service connection for a blood disorder, having been withdrawn, is dismissed.

Entitlement to service connection for hearing loss is granted

Entitlement to service connection for tinnitus is granted.


REMAND

As for the remaining claim on appeal, the Board finds that further development is warranted.  Service connection for PTSD requires (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred.  See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). 

At the March 2017 hearing, the Veteran claimed to have PTSD from combat service.  He reported trauma from a 1967 incident where he witnessed people quarantined and die in the 4th Infantry Division.  He also attributed PTSD symptoms to guard duty and exposure to artillery fire.  He reported fearing for his life, nightmares, flashbacks, and crying spells.

The Veteran was afforded a VA examination in September 2011.  A PTSD diagnosis was not provided.  The examiner attributed the Veteran's complaints of sleep problems to persistent insomnia.  The examiner found that the Veteran did not have any clinically significant symptoms of PTSD, to include anxiety or mood problems.  However, the examiner did not have the opportunity to consider the Veteran's March 2017 hearing testimony that could possibly substantiate his claim.  

As the Veteran's testimony was not considered by the September 2011 VA examiner, further development is warranted to determine whether a diagnosis of PTSD is warranted.  In addition, the Veteran's service personnel records, aside from his DD Form 214, are not associated with the claims file.  Therefore, the RO should attempt to obtain the Veteran's complete personnel records and schedule the Veteran for a VA examination.

Accordingly, the remaining claim is REMANDED for the following action:

1. Obtain a copy of the Veteran's complete service personnel records.

All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile.  If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159(e).

2. After completing the above to the extent possible, schedule the Veteran for a VA psychiatric examination with an appropriate mental healthcare professional to address the nature and etiology of the Veteran's psychiatric disability. 

The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed.  Any indicated studies should be performed.

The examiner should first identify all psychiatric disabilities that have been present since the Veteran's May 2011 claim, including but not limited to PTSD.  The examiner should consider the Veteran's May 2017 testimony on his claimed stressor(s) and symptoms.

If there is a PTSD diagnosis, the examiner should identify which stressor(s) upon which the diagnosis is based has been corroborated or verified. 

If the examiner finds that the criteria for a PTSD diagnosis have not been met, either due to lack of sufficient stressor or otherwise, the examiner must explain why this is so and whether there are any other psychiatric diagnoses.

For each currently diagnosed psychiatric disorder, is it at least as likely as not that the disorder had its onset during or was otherwise caused by the Veteran's service?

A complete rationale should accompany each opinion provided.

3. After completing the above development, readjudicate the claim remaining on appeal after conducting any additional development deemed appropriate.  If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond before the case is returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).



______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs