Citation Nr: 18149349 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-45 520 DATE: November 9, 2018 ORDER Entitlement to service connection for hearing loss is granted. REMANDED Entitlement to a disability rating in excess of 50 percent prior to May 21, 2015, and in excess of 70 percent thereafter, for service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Resolving any doubt in the Veteran’s favor, the evidence supports a finding that the Veteran’s bilateral hearing loss was caused by in-service acoustic trauma. CONCLUSION OF LAW The criteria for establishing service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to April 1988. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In addition to the Veteran’s claim of service connection for bilateral hearing loss being decided herein, as well as the claims for higher disability ratings for PTSD and entitlement to a TDIU being remanded below, the RO also denied the additional claim for compensation under 38 U.S.C. § 1151 for recurrent priapism and residuals of priapism decompression in the February 2014 rating decision. The denial was continued in a July 2016 statement of the case (SOC). In the Veteran’s substantive appeal, however, he specifically appealed only the hearing loss, PTSD, and TDIU claims. As such, the claim for entitlement to compensation under 38 U.S.C. § 1151 is not on appeal before the Board. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). It is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he has bilateral hearing loss as a result of his military service. Based on the following, the Board finds that service connection is warranted. Upon VA examination in July 2013, the Veteran stated that he was exposed to tank fire, artillery fire, and noise from other track vehicles while assigned as a Medical Specialist serving in an armored tank battalion. His service records show military occupational specialties as a Medical Non-commissioned Officer (NCO) and a Practical Nurse in the United States Army’s 2nd Battalion, 8th Cavalry Regiment – an armored unit. Thus, his statements as to in-service noise exposure are consistent with the circumstances of his service, and are considered credible. 38 U.S.C. § 1154(a). More importantly, the Board notes that service connection has already been established for tinnitus based on in-service exposure to acoustic trauma. As to whether the Veteran has hearing loss for VA purposes, impaired hearing is considered a disability for the purpose of applying the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 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. Here, auditory thresholds upon VA examination in July 2013 revealed hearing loss bilaterally for VA purposes. Finally, as to nexus, while the Board acknowledges that a VA examiner in July 2013 provided a negative opinion regarding the etiology of his hearing loss explaining that there was no evidence of hearing loss or any significant threshold shift during service, it was also noted that the Veteran’s service treatment records are negative for an audiological examination upon service separation in 1988, with the latest examination conducted in June 1985. Moreover, in a December 2012 VA treatment record, the Veteran reported a gradual onset of his hearing loss, and he has consistently denied occupational and recreational noise exposure during the entire appeal. The Veteran also stated as early as August 2008, when he first sought VA medical care, that his hearing was decreased. The Veteran is competent to report a history of subjectively perceived symptoms such as diminished hearing since service, and the Board finds his statements to be credible in this regard. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His MOS as a Medical Specialist, which is analogous to the civilian occupation of medical assistant, also indicates a reasonable quantity of medical training. As such, his statements must be considered in the context of his medical training and cannot be simply dismissed as being the opinions of a layperson commenting on matters outside of his competence. See Pond v. West, 12 Vet. App. 341 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, based on the foregoing, and resolving any doubt in the Veteran’s favor, the Board concludes that the facts of the case support a grant of service connection for bilateral hearing loss. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. REASONS FOR REMAND While the Board regrets further delay, additional development is necessary regarding the claim of entitlement to higher ratings for service-connected PTSD. A review of the evidence since the last statement of the case (SOC) in July 2016 indicates that new evidence has been associated with the claims file. Specifically, VA obtained an additional PTSD examination in October 2018. Further, additional VA treatment records have been associated with the claims file. A supplemental statement of the case (SSOC) must be furnished to the claimant when additional pertinent evidence is received after a SOC or the most recent SSOC has been issued. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. Although the Veteran’s substantive appeal was received after February 2, 2013, the automatic waiver provision does not apply to the Veteran’s claim because this additional evidence was obtained by VA and was not submitted by the Veteran. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration). This provision only applies to evidence submitted by the Veteran. Therefore, the issue of entitlement to a higher rating for the Veteran’s PTSD must be remanded to allow for AOJ consideration of the additional examination and VA treatment records. In addition, because the Veteran’s TDIU claim is inextricably intertwined with the increased rating claim, appellate consideration of entitlement to a TDIU is deferred pending resolution of the remaining claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). (Continued on the next page) The matters are therefore REMANDED for the following action: Review the additional evidence added to the record since the July 2016 SOC and readjudicate the claims on appeal, to include the claim for entitlement to a TDIU. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel