Citation Nr: 1804840 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-29 347 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety. 3. Entitlement to service connection for alcohol and substance abuse disorder, including as due to an acquired psychiatric disorder. 4. Entitlement to service connection for sleep apnea, including as due to an acquired psychiatric disorder and alcohol and substance abuse disorder. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and spouse ATTORNEY FOR THE BOARD E. Choi, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1988 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the RO in Denver, Colorado. The Board has recharacterized the issue on appeal as service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety, in accordance with the United States Court of Appeals for Veterans' Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits of one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). In July 2017, the Veteran testified at a Board Videoconference hearing in Denver, Colorado, before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. A transcript of the hearing has been associated with the electronic file. Since issuance of the Statement of the Case (SOC) in September 2013, additional evidence has been received by the Board. The Veteran's substantive appeal via VA Form 9 was received after February 2, 2013 (received by VA in October 2013); therefore, this evidence is subject to initial review by the Board unless the Veteran explicitly requests consideration by the Agency of Original Jurisdiction, which has not been requested in this case. 38 U.S.C. § 7105(e) (2012). As such, the Board may consider this evidence in the first instance. The Board has reviewed the electronic files on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. The issues of service connection for an acquired psychiatric disorder, alcohol and substance abuse disorder, and sleep apnea, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma (loud noise) during service. 2. The Veteran does not have a current disability of bilateral hearing loss for VA compensation purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the Agency of Original Jurisdiction's initial unfavorable decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As the instant decision remands the issue service connection for an acquired psychiatric disorder, alcohol and substance abuse disorder, and obstructive sleep apnea, no further discussion of VA's duties to notify and assist is necessary as to those issues. With respect to the issue of service connection for bilateral hearing loss, the RO provided notice to the Veteran in July 2011 and July 2012, prior to adjudication in August 2012 that denied service connection for bilateral hearing loss. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. During the July 2017 Board hearing, the undersigned VLJ heard the Veteran's testimony as to the issue of service connection for bilateral hearing loss. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the July 2017 Board hearing, the undersigned VLJ specifically advised the Veteran and representative that the record did not reflect a current disability for bilateral hearing loss and that such evidence was necessary to substantiate the claim for service connection; thus, the Board concludes that VA has satisfied its duty to notify the Veteran. VA has also satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek and assist in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, VA treatment records, VA examination reports, private treatment records, and lay statements. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided a VA examination in June 2012, the report for which has been associated with the claims file. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2012 VA examination report, taken in light of the other lay and medical evidence of record, is thorough and adequate and provides a sound basis upon which to base a decision with regard to the issue of service connection for bilateral hearing loss on appeal. The VA examiner reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history, conducted a physical examination, and offered an opinion with supporting rationale. In light of the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). 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). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that service connection is warranted for bilateral hearing loss resulting from in-service noise exposure. Specifically, during the July 2017 Board hearing, the Veteran testified to various in-service noise exposures as a fire support specialist, including from artillery fire and from operating tanks. Initially, the Board finds that the Veteran experienced in-service acoustic trauma. As detailed above, the Veteran has reported exposure to acoustic trauma from various loud noise exposures during service, including from artillery fire and from operating tanks. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). The Board finds the Veteran's account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of his service. 38 U.S.C. § 1154(a). Accordingly, the Board finds that the Veteran was exposed to acoustic trauma during service. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence shows the Veteran does not have a current hearing loss disability as defined by VA regulatory criteria under 38 C.F.R. § 3.385. In June 2012, the Veteran was provided a VA audiometric examination. The June 2012 VA examination report reflects the Veteran reported decreased auditory acuity following noise exposure working as a fire support specialist and artillery man in service, and denied any occupational or recreational noise exposure. During the June 2012 VA audiometric examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 20 15 LEFT 15 20 15 15 20 Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 94 percent bilaterally. Upon conclusion of the June 2012 VA examination, the VA examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 6000 Hz or higher. Furthermore, the VA examiner stated that service treatment records show the Veteran had hearing damage at 6000 Hz and 8000 Hz in the left ear during service, and, based on the likely hazardous noise exposure shown by military personnel records, the VA examiner opined that left ear hearing loss is at least as likely as not caused by, or the result of, noise exposure while in service. A February 2017 VA treatment record reflects that the Veteran underwent an audiometric evaluation and reported suffering a seizure in 2013 that may have also affected hearing acuity in the left ear. Following the audiometric examination, the VA examiner noted that pure tone testing revealed normal hearing bilaterally and speech discrimination skills were excellent bilaterally. The June 2012 VA examiner's diagnosis of bilateral sensorineural hearing loss only pertained to the 6000 Hz range or higher, but does not show current hearing loss disability at the 500 to 4000 Hz ranges to be a disability as defined by 38 C.F.R. § 3.385. In evaluating a service connection claim, evidence of a current disability is an essential element, and, where not present, the claim under consideration cannot be substantiated. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("[c]ompensation for service-connected injury is limited to those claims which show a present disability"). The Court held in Brammer v. Derwinski that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer, 3 Vet. App. at 225; see Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); see also McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. Because a hearing loss disability as defined by the VA regulatory criteria at 38 C.F.R. § 3.385 is not demonstrated in this case, service connection must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. REMAND Service Connection for an Acquired Psychiatric Disorder, Alcohol and Substance Abuse Disorder, and Sleep Apnea The Veteran contends that an acquired psychiatric disorder and alcohol and substance abuse disorder developed during service following a military sexual trauma (MST). The Veteran outlined the details of the claimed MST during the July 2017 Board hearing, which the Veteran testified occurred in October 1988. The record also reflects that the Veteran has not been provided with notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) with explanation of the type of evidence that may be relevant in corroborating the occurrence of a stressor in claims for service connection for PTSD resulting from a personal assault. See 38 C.F.R. § 3.304(f) (2017). Upon remand, such VCAA notice should be provided. The separate issue of entitlement to sleep apnea, including as due to an acquired psychiatric disorder, is inextricably intertwined with the issue of entitlement to service connection for an acquired psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the RO should attempt to obtain any outstanding VA treatment records for the period from December 2015. Accordingly, the case is REMANDED for the following actions: 1. Associate with the record all VA treatment records for the period from December 2015. 2. Send the Veteran an appropriate VCAA notice letter that includes an explanation of the type of evidence that may be relevant in corroborating the occurrence of a stressor in claims for service connection for PTSD resulting from a personal assault in compliance with 38 C.F.R. § 3.304(f). 3. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the case is returned to the Board. 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). 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs