Citation Nr: 1806837 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-23 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1965 to January 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veteran's appeals on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (Agency of Original Jurisdiction (AOJ)). In August 2017, the Veteran testified, via videoconference, before the undersigned Veterans Law Judge. A copy of that transcript is of record. As a preliminary matter, the Board notes that the present appeal also included a claim for entitlement to service connection for sleep disturbance. At the August 2017 Board hearing, the Veteran testified that his symptoms of sleep disturbance were a manifestation of his acquired psychiatric disabilities. The medical evidence of record also supports this contention. See June 2016 VA Examination. Therefore, the Board has eliminated the separate issue of entitlement to service connection for sleep disorder, as it is encompassed in his claim for service connection for an acquired psychiatric disability. The Board also notes that the AOJ initially adjudicated the Veteran's service connection claim for hearing loss in February 2008. However, the Veteran did not formally withdraw his claim and the appeal period remained open for one year following the issuance of the rating decision. 38 C.F.R. § 20.302(a). In May and September 2008, the Veteran submitted lay and medical evidence regarding his hearing loss which constituted new and material evidence pertaining to the basis of the denial in the February 2008 rating decision. Pursuant to 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. As new and material evidence was received within one year of the issuance of the rating decision, the Board finds that this appeal, as it pertains to service connection for hearing loss, stems from the February 2008 AOJ decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT A bilateral hearing loss disability is related to active duty service. CONCLUSION OF LAW A bilateral hearing loss disability was incurred in service. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304(d), 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). Given the favorable nature of the Board's decision, a discussion of VA's compliance with the notice and assistance requirements is unnecessary. Any potential error on the part of VA in complying with the provisions of the VCAA, or with any of the Board's prior remand instructions, has essentially been rendered moot by the Board's full grant of the benefits sought on appeal. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). To establish service connection, a claimant must show: "(1) the existence of a present disability; (2) 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including organic diseases of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, in this case, the record reflects less than 90 days of active service, and hence the presumption does not apply. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Turning to the facts of the case at hand, the Veteran contends that his current bilateral hearing loss is attributable to his period of service. Specifically, the Veteran testified that while stationed in Thailand, he served on the flight line without hearing protection and suffered acoustic trauma. He contends that he first noticed a loss in his hearing acuity upon discharge from service, which has worsened over the years. See Board Hearing Transcript, pp. 8-9. At one point in service, the Veteran was noted to have high frequency hearing loss. See Service Treatment Record dated October 18, 1967. Upon separation examination, there was a noted shift in the Veteran's hearing acuity. As it specifically pertains to the right ear, upon separation, the Veteran had a hearing loss disability for VA purposes. See Audiogram dated October 30, 1968; 38 C.F.R. § 3.385. In his letters to his wife, the Veteran often complained of the noise on the flight line and his difficulty hearing his sergeant. See Letters dated April 7, 1968, October 26, 1968, November 18, 1968, and January 6, 1969. Post-service, the Veteran received treatment for his hearing loss. However, while some treating physicians suggested that the Veteran's hearing loss was noise induced, no physician provided an adequate nexus opinion relating his hearing loss to his in-service acoustic trauma. The Veteran was afforded a VA examination in February 2008. At that time, the clinician opined that the Veteran's hearing loss was less likely than not related to his in-service noise exposure. The clinician reasoned that the Veteran's hearing loss pre-existed his period of service. No further detail was provided. In January 2018, the Board sought additional opinion from a VHA otolaryngologist. The examiner found that during service, the Veteran had permanent threshold shifts indicative of noise-induced acoustic trauma. Thus, the examiner found that it was at least as likely as not that the Veteran's left ear hearing loss was causally related to acoustic trauma in-service. Given the facts as outlined above, the Board finds that the weight of the evidence is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is the result of in-service acoustic trauma. Overall, the record contains consistent opinion that the Veteran's bilateral hearing loss is noise induced. Furthermore, upon separation, the Veteran manifested a right ear hearing loss disability for VA purposes. In addition, the January 2018 expert positive nexus is supported with adequate rationale based on sound medical principles. In light of the favorable VHA expert medical opinion, the medical evidence of record, and the Veteran's competent and credible lay statements, the Board finds that service connection for a bilateral hearing loss disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). ORDER Service connection for a bilateral hearing loss disability is granted. REMAND As for the remaining issue on appeal, the Board finds that additional development is necessary prior to adjudication. The Veteran contends that he has an acquired psychiatric disability stemming from his period of service. A review of the Veteran's post-service treatment records reflect that treating physicians have suggested that his diagnosed acquired psychiatric disabilities may be related to his hearing loss and/or tinnitus. To date, the Veteran has been afforded VA examinations to determine the nature and etiology of his acquired psychiatric disabilities. However, examiners have yet to provide an adequate nexus opinion addressing service connection on either a direct or secondary basis. At the October 2008 VA examination, the clinician found that the Veteran did not meet the DSM criteria for any acquired psychiatric disability, reasoning that his symptoms were too vague to provide an adequate diagnosis. However, the examiner failed to reconcile that finding with the Veteran's history of acquired psychiatric diagnoses from various mental health professionals. At the June 2016 VA examination, the clinician diagnosed the Veteran with PTSD pursuant to the DSM-5, but failed to provide a nexus opinion. Given these facts, another VA examination is necessary. Upon remand, the AOJ should schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his diagnosed acquired psychiatric disabilities. 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. Contact the Veteran and his representative and, with their assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers referable to the treatment of the Veteran's claimed disabilities. Attempts to obtain this information should be documented in the record. 2. Schedule the Veteran for a VA psychiatric examination with an appropriate examiner to determine the nature and etiology of his psychiatric disabilities. The claims folder and a separate copy of this remand should be made available to the examiner for review and the examiner should confirm that such records were available for review. All tests and studies deemed necessary should be accomplished. Upon review of the record and examination of the Veteran, the examiner should respond to the following: a) The examiner should list the Veteran's psychiatric disabilities manifested since service, if any. b) For each psychiatric disability diagnosed, the examiner is to provide an opinion as to: a. Whether it is at least as likely as not (i.e. there is at least a 50 percent probability) that any current psychiatric disability had its onset during the Veteran's military service or is otherwise traceable thereto; OR b. Whether it is at least as likely as not (i.e. there is at least a 50 percent probability) that any current psychiatric disability was either cause or aggravated beyond the normal progress of the disorder by his service connected hearing loss or tinnitus? In reaching his or her opinion, the examiner should consider the following: * March 10, 1965: the Veteran reports being nervous and depressed. * April 9, 1965: the Veteran reports nervousness and requests psychiatric consultation. * April 10, 1965: the Veteran is diagnosed with anxiety reaction and prescribed medication. * April 26, 1965: the Veteran reports having occasional nervousness. * July 20, 2006 and November 7, 2006: the Veteran reports feeling depressed due to tinnitus. * April 4, 2008: physician diagnoses Veteran with severe tinnitus associated with generalized anxiety disorder with components of PTSD and depression. * VA's factual finding that both tinnitus and hearing loss manifested during service. For purposes of this analysis, aggravation is defined as a permanent worsening of the disability beyond that due to the natural disease process. If the examiner finds that the Veteran does not have an acquired psychiatric disability pursuant to the DSM criteria, the examiner is asked to discuss the Veteran's documented history of various acquired psychiatric diagnoses and reconcile his/her finding with the medical evidence of record. All opinions must be supported by adequate rationale. 3. After the development requested above has been completed to the extent possible, the entire record, including any additional records obtained, should again be reviewed, and the Veteran's service-connection claim should be readjudicated. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs