Citation Nr: 1805418 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-12 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 2006 to August 2009, with service in Iraq from October 2007 to January 2009. Initially, the Board notes that by way of a September 2010 administrative decision, the Department of Veterans Affairs (VA) determined that the Veteran's service from July 27, 2006, to July 26, 2008, was honorable for VA purposes; however, his service from July 27, 2008, to August 10, 2009, was dishonorable and a bar to VA benefits under 38 C.F.R. 3.12(d)(4). Of note, included in the record is a September 2009 letter from the Army Discharge Review Board upgrading the Veteran's character of service to honorable. However, multiple attempts by VA to confirm whether the Veteran's service characterization was upgraded prior to issuance of the administrative decision were unsuccessful. Further, the Veteran's DD-214 Certificate of Discharge continues to reflect a discharge character of under other than honorable conditions. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the VA Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction now resides with the RO in Roanoke, Virginia. In the Veteran's February 2015 Substantive Appeal, he requested a videoconference hearing before a Veterans Law Judge. He was provided notice but failed to attend the hearing or request a postponement. Subsequently, in May 2016 correspondence, he requested his appeal be transferred to the Board without a hearing. His hearing request is therefore deemed to have been withdrawn. 38 C.F.R. § 20.704(d) (2017). These matters were previously before the Board in July 2016, at which time they were remanded for further evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for an acquired psychiatric disability, to include 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. The Veteran has not demonstrated hearing loss in either ear to an extent recognized as a disability for VA purposes. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus as a result of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; VA Training Letter 10-02. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with 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). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. In the absence of proof of present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), Degmetich v. Brown, 104 F. 3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). By internal agency materials, the VA Secretary has made clear that sensorineural hearing loss is considered subject to 38 C.F.R. § 3.309(a) as an "[o]rganic disease[] of the nervous system." Appendix at 10 (VA Training Letter 10-02). Fountain v. McDonald, 27 Vet. App. 258 (2015), added tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). Because hearing loss and tinnitus have been found to be chronic diseases, the Board finds that the theory of continuity of symptomatology in service connection claims is applicable to these claims. Regarding service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. at 159. Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran's May 2006 service entrance examination report contains an audiogram with normal results in both ears: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 15 15 5 RIGHT 10 5 10 5 5 No complaints of hearing loss or tinnitus were made by the Veteran. His military personnel records indicate that he served as an Armor Crewman. As such, military noise exposure is conceded. Several assessments of the Veteran's hearing were conducted during service. In March 2007, an audiogram revealed the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 15 15 5 RIGHT 15 0 10 10 0 During that evaluation, the Veteran reported no ringing, clicking, or buzzing in his ears, and noted that he used combat arms hearing protection. In October 2007, the Veteran reported ringing in his bilateral ears. He stated that he continued to wear combat arms hearing protection. A December 2007 service treatment record noted a complaint that he was hard of hearing in his left ear. Post-service, a VA medical treatment record from May 2011 noted that the Veteran complained of intermittent tinnitus when recumbent and some hearing loss. A VA hearing examination was conducted in October 2012. The Veteran's hearing exhibited the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 20 15 20 20 10 RIGHT 25 15 15 10 15 Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 100 percent bilaterally. The diagnosis was clinically normal bilateral hearing with no significant shift in hearing from induction to the date of the examination to indicate any damage to the auditory system while on active duty. The Veteran reported pain in his left ear several days previously. The Veteran also reported recurrent tinnitus, occurring once per week and lasting for approximately two minutes. The Veteran reported that the tinnitus distracted him and threw him off, causing depression. The examiner determined that it was less likely than not that the Veteran's tinnitus was related to his active service, as no clinical hearing loss was present in either ear. Another VA hearing examination was conducted in January 2015. The audiogram revealed the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 20 15 25 20 15 RIGHT 15 15 20 15 15 Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 100 percent in the left ear and 94 percent in the right ear. The Veteran reported that he mishears and gets frustrated when he cannot understand speech. He stated that his recurrent tinnitus began in approximately 2008. He described experiencing tinnitus for approximately two minutes a few times per week. He noted that he gets a headache following tinnitus. The diagnosis was normal hearing bilaterally, with no permanent positive threshold shift greater than normal measurement variability at any frequency. The examiner stated that because the Veteran's tinnitus was intermittent and not constant, it was not associated with noise exposure. In July 2015, the Veteran reported that he was not hearing well out of his left ear. In a March 2016 VA treatment record, it was indicated that the Veteran had no hearing problems or tinnitus. I. Bilateral Hearing Loss As noted above, the Veteran's exposure to military noise has been conceded. However, he has not demonstrated hearing loss sufficient for VA disability purposes. In the record there is a June 2009 audiogram conducted during the Veteran's dishonorable service period that does indicate hearing loss meeting the requirements of 38 C.F.R. § 3.385. However, as indicated above, although the audiogram is dated within a year of honorable service, the Veteran is not eligible for VA benefits based on disabilities incurred during his period of dishonorable service. Normal hearing was indicated by the March 2007 audiogram, the last evaluation of the Veteran's hearing during honorable service. Further, the June 2009 audiogram shows significantly higher decibel levels at all frequencies that are not reflected in later audiograms. Every other audiogram conducted revealed normal hearing. It is difficult to believe that chronic sensorineural hearing loss due to acoustic trauma would improve over time without some intervening cause. This is supported by the October 2012 and January 2015 audiogram results, which indicate normal hearing bilaterally. Therefore, the results of the June 2009 audiogram appear to be an outlier. The Board recognizes that the Veteran has stated that he experiences hearing loss, often worse in his left ear. He is competent to testify as to the onset and continuity of any hearing difficulties as they are "readily observable" to a lay person. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). However, he is not competent to determine whether or not he has objectively-measured hearing loss. As such, the results of the October 2012 and January 2015 audiograms and speech recognition testing are the most competent, credible, and probative evidence as to whether a hearing disability is present. Post-service, the Veteran's hearing has not been shown to exhibit a puretone threshold of 40 decibels or greater at the 500, 1000, 2000, 3000, or 4000 Hertz frequencies, nor have at least three of the above frequencies demonstrated 26 decibels or greater, nor have speech recognition scores using the Maryland CNC Test been less than 94 percent. 38 C.F.R. § 3.385. Accordingly, in the absence of evidence of a bilateral hearing loss disability which meets the criteria of 38 C.F.R. § 3.385, there is no reasonable basis to establish service connection. The Board finds that the preponderance of the evidence is against granting service connection. See 38 C.F.R. 3.303(a). The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57. II. Tinnitus Unlike with hearing loss, the Veteran is competent to testify as to symptoms such as ringing in the ears, because this symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran reported ringing in his ears while in service, and later stated that he noticed tinnitus symptoms while in service, in approximately 2008. The Board finds no reason to question the credibility of the Veteran's consistent reported history of ringing in his ears. The October 2012 VA examiner determined that it was less likely than not that the Veteran's tinnitus was related to his active service because no clinical hearing loss was present in either ear. However, the results of an audiogram and speech recognition test do not definitively determine whether or not tinnitus is present. As such, no real opinion was given on whether the Veteran's competent and credible symptoms of tinnitus were related to military service. Additionally, the January 2015 VA examiner only reviewed two audiograms from the Veteran's service treatment records before rendering an opinion. The Veteran's in-service statement of experiencing ringing in his ears was not taken into account. As this was not addressed, the examination report is not an adequate basis upon which to determine the claim. Given the report of ringing in his ears during service and the continued reports of intermittent tinnitus, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus is related to active service. Therefore, resolving all doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is granted. REMAND The Board's directives in the July 2016 remand to the VA clinician examining the Veteran in regards to his psychiatric claim were to identify any psychiatric diagnoses, including PTSD, and to determine whether they were related to service. The examiner was specifically directed that if the Veteran was found not to have an acquired psychiatric disorder, such an opinion must be reconciled with VA treatment records which have been made part of the claims file noting symptoms of trouble sleeping, depression, and thoughts of and suicide attempts. The Veteran was afforded a VA psychiatric evaluation pursuant to the remand in October 2016. The examiner could not determine a diagnosis without mere speculation based on the information received at the examination because she determined that there was "significant exaggeration or feigning of symptoms." However, the Veteran's documented post-service symptoms and suicide thoughts/attempts were not discussed. Although the Veteran was determined to be inconsistent or exaggerating current symptoms, notations and determinations by medical clinicians in the record were not addressed. Additionally, although noted, the Veteran's in-service psychiatric symptoms and suicide attempt were not discussed. As such, the Board's directive to reconcile the symptoms reported with the opinion given was not accomplished. Therefore, remand is necessary to obtain an addendum opinion to fulfill the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that following the July 2016 remand, the RO complied with the requirements of M21-1, Part IV.ii.1.d.5.e, regarding the actions required of VA when a claim based on military sexual trauma (MST) is received. The Veteran did not return any documentation providing the necessary information to develop a MST claim, based on his May 2016 statement. However, in August 2017, the Veteran submitted what appear to be several photographs of portions of a psychiatric medical record. As this record may be relevant to the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, upon remand the Veteran must be afforded an opportunity to submit a complete and legible copy of the medical record. Accordingly, 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.) 1. Appropriate efforts should be made to obtain and associate with the electronic case file any outstanding VA medical records since February 2017. 2. Contact the Veteran and request he submit or authorize for release all private treatment records associated with his current claims. Specifically, ask the Veteran to identify the record submitted in August 2017 and either submit a complete and legible copy of the record or authorize it for release. 3. After completing the directives above to the extent possible, refer the case to the VA examiner who provided the October 2016 evaluation report for a supplemental opinion, and if warranted, another examination. If the same examiner is not available, the claims folder should be forwarded to another clinician. If evaluation of the Veteran is deemed necessary, appropriate arrangements should be made to evaluate the Veteran. The examiner shall review the Veteran's claims folder to determine if the Veteran has an acquired psychiatric disorder to include, PTSD, bipolar, and/or an adjustment disorder and whether the Veteran's acquired psychiatric disorder is due to verified stressors, the fear of hostile action during active service, or MST and to determine the nature and etiology of any other acquired psychiatric disorders that have been present during the pendency of this claim. After reviewing the claims file, all prior opinions provided and examining the Veteran if warranted, the examiner should answer the following questions: a. Does the Veteran have a diagnosis of an acquired psychiatric disorder, to include PTSD, bipolar disorder and/or adjustment disorder? b. If PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. If the examiner determines that the Veteran has PTSD related to the claimed in-service stressor of an in-service personal assault, fear of hostile action during active service, or other stressors the examiner should review the claims folder and render an opinion as to whether there is evidence of changed behavior after an alleged assault or any other evidence of record, which would be consistent with the alleged trauma. c. If the Veteran is diagnosed with any other psychiatric disorder, then the examiner is requested to provide an opinion on whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's acquired psychiatric disability is related to his active duty service? If the examiner finds the Veteran does not have an acquired psychiatric disorder such an opinion must be reconciled with VA treatment records which have been made part of the claims file. The examiner should also discuss any relationship between psychiatric symptoms reported during honorable service and dishonorable service with post-service symptoms and lay statements. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 4. Readjudicate the issues on appeal. 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). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs