Citation Nr: 1754525 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-12 172A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for service connection for bilateral hearing loss. 2. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for disability manifested by essential tremor, to include Parkinson's disease, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from October 1965 to October 1967. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which denied the claims above. The Veteran filed a timely notice of disagreement (NOD) in August 2013, and subsequently filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2014. In the April 2014 VA Form 9, the Veteran limited his appeal to the claims for service connection for bilateral hearing loss and PTSD. However, during the February 2017 Board videoconference hearing, the Veteran testified that he wished to appeal his claim relating to Parkinson's disease as well. The transcript of the hearing is of record. The undersigned Veterans Law Judge took testimony on this issue and thus implicitly found that any timeliness or other issue with regard to a substantive appeal as to this claim was waived. Thus, the issue is before the Board and will be addressed in the remand below. Percy v. Shinseki, 23 Vet. App. 37, 42-45 (2009) (timely filing of a substantive appeal as not jurisdictional, and VA may waive any issue of timeliness). The issue has been characterized more broadly for the reasons indicated below. As noted, the issue of entitlement to service connection for Parkinson's disease 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 evidence is at least evenly balanced as to whether the Veteran's current bilateral hearing loss disability is related to his active military service. 2. The Veteran does not have a current acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1116, 5103A, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § 5103, 5103A; 38 C.F.R. § 3.159. Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. During his February 2017 hearing, the Veteran, through his representative, requested a "full examination for his PTSD." When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For the reasons indicated in the discussion below, the Board finds that the VA psychiatric examination of record is adequate, as it is predicated on consideration of the medical records in the Veteran's claims file, to include the Veteran's statements, and reflects that the examiners conducted a full examination of the Veteran. Neither the Veteran nor his representative, as to the claims decided, has raised any other issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. II. Legal Principles and Analysis 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.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). 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). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed his claim for service connection for bilateral hearing loss disability in September 2008. Moreover, the Board cannot draw a bright line at the date of claim but must consider all of the evidence of record in determining whether the Veteran has met the current disability requirement. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system, including sensorineural hearing loss, are chronic diseases. See VA Adjudication Manual, M21-1, IV.ii.2.B.2.b (Mar. 2, 2017) (noting that Compensation Service has determined that sensorineural hearing loss constitutes an organic disease of the nervous system). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1101 (3), 1112(a)(1); 38 C.F.R. § 3.307 (a) , 3.309(a). See also VA Adjudication Procedures Manual, IV.ii.2.B.2.b. (March 2, 2017) (listing sensorineural hearing loss as an organic disease of the nervous system); Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). A. Bilateral Hearing Loss For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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 audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. The Veteran contends that his current bilateral hearing disability is a result of his noise exposure in service. Audiometric testing from the August 1965 enlistment report of medical examination revealed the following: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 (-5) 5 (-5) 5 (-5) 5 (-5) 5 (0) Left X 15 5 (-5) 0 (-10) 10 (5) Audiometric testing from the August 1967 separation report of medical examination revealed the following: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 20 (5) 15 (5) 15 (5) X 15 (10) Left 20(5) 15(5) 15 (5) X 10(5) Audiological evaluations during the Veteran's military service took place prior to October 31, 1967. Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to this date were in ASA (American Standard Association) units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO (International Organization for Standardization) units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. In the audiometric tables above, ASA units are indicated in parentheses. Post service, during his February 2013 VA examination, the Veteran reported that his military occupational specialty (MOS) was with artillery and reported that he was in the middle of six guns while in Vietnam. He further described that over 200 rounds of gunfire were fired nightly. He reported a perception of change to his hearing during and following service in Vietnam. On audiometric testing, pure tone thresholds, in decibels, were as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 20 25 65 95 Left 15 20 25 60 70 His speech recognition scores were noted as 86 percent in the right ear and 92 percent in the left ear. The examiner opined that the Veteran's hearing loss was not at least likely as not (50 percent probability or greater) caused by or a result of an event in military service. As rationale, she stated that per evidence within the record, audiometric thresholds remain in the normal sensitivity range and without significant variability with comparison of enlistment and separation documents. She further stated that noise exposure is conceded with duties in field artillery. She stated that his history is remarkable for military related and post-military occupational noise exposure. Upon review of the evidence of record, the Board finds that service connection for bilateral hearing loss is warranted. As an initial matter, the Board finds that the preponderance of the evidence supports a current hearing loss disability and in-service noise exposure. Thus, the dispositive issue is whether there is a nexus between the two. The February 2013 VA examiner's opinion reflects a lack of a relationship between the current hearing loss disability and the in service noise exposure. Specifically, the examiner noted normal hearing at entrance and separation and concluded that the thresholds at separation remained in the normal sensitivity range and without significant variability. The examiner conceded his noise exposure, found that his history is remarkable for military related and post-military occupational noise exposure, however; concluded that there was no relationship between his conceded noise exposure and current disability. However, it appears that the examiner did not fully take into consideration the Veteran's statements as to the onset of his bilateral hearing loss, and the continued symptoms he experienced. Thus, the opinion is inadequate. 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"). There is also lay evidence suggesting a nexus between the current bilateral hearing loss and service, specifically, lay testimony of some continuity of hearing loss symptomatology. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence"). During his February 2013 VA examination, the Veteran reported a perception of a change in hearing during service. Thus, there is an inadequate negative medical nexus opinion and competent, credible lay evidence of current bilateral hearing loss that had its onset in service. The evidence is therefore at least evenly balanced as to whether the Veteran's bilateral hearing loss is related to his in-service noise exposure. 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 bilateral hearing loss is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006)("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). B. Psychiatric Disability There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD specifically requires medical evidence diagnosing this disorder based on examination findings and in accordance with the DSM-IV; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304 (f), 4.125(a). Service treatment records do not contain a diagnosis, treatment, or complaint of a psychiatric disability. Private medical treatment notes from December 1999 reflect that the Veteran had feelings of anxiety. In a January 2013 statement, the Veteran reported that he was having flashbacks of a dead enemy impaled on the front of a vehicle, and he was in fear of mortar and bombing attacks along with their vehicle riding over land mines. The Veteran underwent a VA examination in February 2013 where the examiner reported that he did not meet the diagnostic criteria for PTSD under DSM-IV. Additionally, the examiner found that he did not have a mental disorder that conforms to DSM-IV. The Veteran denied any interpersonal problems or significant conflict with his family. The Veteran described his marriage as "great." He reported having an active social life over the years and at the time of the evaluation; he was involved in activities like dancing, eating out, and assisting the priest at church. The Veteran denied any history of psychiatric symptoms, evaluation, or treatment prior to entering service. After discharge, he reported that he experienced significant restlessness during sleep and periodic intrusive thoughts and images; mainly of the amputated head hanging off the jeep. He further reported that such memories became less frequent as his life became busier with work and his family. Overall, the examiner described his symptoms has mild at worst over the years. There was no impairment in social functioning due to psychiatric symptoms at the time of evaluation. He reported that he was able to complete self-care activities without assistance, and, overall, generally functioned independently. The examiner further reported that primary care notes from the Veteran's non-VA provider, Dr. W.J., described anxiety, panic attack, and depression versus panic attack. The examiner also noted that there was no history of a psychiatric evaluation, no history of a formal evaluation for PTSD, and no history of diagnosis or treatment for PTSD. The examiner found that the Veteran's stressors are related to the Veteran's fear of hostile military or terrorist activity; however, it is not adequate to support the diagnosis of PTSD. The examiner concluded that the Veteran does not meet DSM-IV criteria for a diagnosis of PTSD either in terms of valid Criterion A stressors or presentation of full constellation of symptoms. She reported that there is no history of formal mental health evaluation and he is not experiencing symptoms consistent with any psychiatric disorder. She found that there are no psychological conditions or diagnoses related to or the result of his military service. As the examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her finding of no psychiatric disorder is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The weight of the above evidence reflects that the Veteran has not had a psychiatric disability during the pendency of the claim. While a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C.A. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"), here the evidence does not reflect any complaint or notation of a psychiatric disability. Moreover, the question of whether symptoms such as psychiatric symptoms could constitute "disability" for purposes of the VA compensation laws and regulations in the absence of a specific diagnosis is one that the courts have not definitively answered. See Joyner v. McDonald, 766 F.3d 1393, 1396, n. 1 (Fed. Cir. 2014) (specifically declining to reach the question of whether pain alone can constitute a disability under 38 U.S.C.A. § 1110 and 1131); Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) ("Mr. Sanchez-Benitez presents an interesting, indeed perplexing, question, but not one that we need or can decide in this appeal"). However, in Sanchez-Benitez, the Federal Circuit held that, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of disability that has resulted from a disease or injury that occurred in service. Id. at 1361-1362. Thus, for example, a claim based on "pain alone" fails "when there is no sufficient factual showing that the pain derives from an in-service disease or injury." Id. In this case, the above evidence and analysis reflects that any psychiatric symptoms exhibited by the Veteran are not due to disease or injury. It follows that they are not due to disease or injury in service. The Board notes that the Veteran was treated for anxiety by his primary care physician; however, this appears to have been resolved as medical treatment notes and reports since 1999 have not reflected any further complaints or treatment for anxiety. As the Veteran has not had a psychiatric disability during the pendency of the claim or any time close thereto, the current disability requirement has not been met and entitlement to service connection is therefore not warranted. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) ("Without a current disability, of course, there can be no service connection and, thus, no disability compensation"). In reaching the above guidance, the Board has considered the Veteran's claim broadly, to encompass any psychiatric disorder and not only the PTSD that was specifically listed in his September 2012 claim and denied by the RO in July 2013. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). The Court also held in Clemons, however, that "[i]t is generally the province of medical professionals to diagnose or label a mental condition, not the claimant." Id. at 6. Thus, while the Veteran is competent to describe the symptoms he experiences, and the Board has considered these statements, he is not competent to opine as to whether those symptoms are due to a psychiatric disorder. The Veteran's statements in this regard are therefore not competent. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a psychiatric disability. The benefit of the doubt doctrine is not for application, and entitlement to service connection for a psychiatric disability, to include PTSD, is not warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is denied. REMAND The Board finds that further development is needed before the Veteran's claim of entitlement to service connection for disability manifested by essential tremor can be decided. The Veteran contends that he has Parkinson's disease due to herbicide exposure in Vietnam. The Veteran's DD 214 reflects that he has had service in Vietnam. The Veteran is thus presumed to have been exposed to Agent Orange. See 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2017). The Veteran underwent a VA examination in January 2013 where the medical professional found that the Veteran did not have any evidence of Parkinson's disease. The examiner noted that the Veteran does have an essential tremor, but did not opine on whether or not this tremor is due to a result of his military service, and/or due to or a result of his exposure to herbicide agents. Although the Veteran does not have a current diagnosis of Parkinson's disease, as noted above a disability is not limited to the Veteran's description of it in his claim. Moreover, the Veteran specifically noted a right arm tremor in his September 2012 claim. The issue in this case is whether the essential tremor is due to a disease other than Parkinson's, and if so, whether it is related to the Veteran's military service. Moreover, even if a disease is not on the list of diseases presumed service connected in veterans exposed to Agent Orange, the Veteran may nonetheless establish entitlement to service connection by showing his essential tremor was actually caused by his Agent Orange exposure. See 38 U.S.C.A. § 1113(b) (West 2014); 38 C.F.R. § 3.303(d) (2016) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). During the February 2017 hearing, the Veteran testified that he experienced tremors that were worsening in his right arm. The Veteran requested a new VA examination from an appropriate physician, rather than a nurse practitioner. As an adequate opinion is not of record, the Board finds that there is insufficient evidence in the record to decide the claim, and a VA examination is needed to determine whether the Veteran's essential tremor is due to a disease other than Parkinson's and, if so whether it is related to his military service, to include his exposure to Agent Orange. 38 U.S.C.A. § 5103A (d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request an opinion from an appropriate specialist physician. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the physician prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. Only if the physician indicates that an examination is necessary should one be scheduled. The physician should first indicate whether the Veteran's essential tremor is due to Parkinson's disease or any other disease. Then, as to any such disorder, the physician should indicate whether it is at least as likely as not (at least a 50 percent probability) that the disorder is related to the Veteran's military service, to include his exposure to Agent Orange. In providing the requested opinion, the physician should specifically consider and discuss all pertinent medical evidence, to include the essential tremor, and lay assertions, the service treatment records, and the VA and private medical records. The basis for the opinion should NOT be that a disease is not on the list of those presumed service connected in those exposed to Agent Orange, as the Veteran may still show that there is a relationship on a non-presumptive basis. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for entitlement to service connection for disability manifested by essential tremor, to include Parkinson's disease, to include as due to Agent Orange exposure. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs