Citation Nr: 1806870	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-13 296	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for bilateral hearing loss disability.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs




WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Steven D. Najarian, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1967 to October 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of January 2011 and August 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

A Board hearing was held in October 2016.  A transcript is of record.

The issues of entitlement to an initial rating in excess of 10 percent for PTSD and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ).


FINDINGS OF FACT

1.  Bilateral hearing loss had its onset in active service.

2.  Tinnitus had its onset in active service.



CONCLUSIONS OF LAW

1.  The Veteran's bilateral hearing loss, being an organic disease of the nervous system, is presumed to have been incurred during service.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 1154 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).

2.  The Veteran's tinnitus, being an organic disease of the nervous system, is presumed to have been incurred during service.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 1154 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  Generally, service connection requires a present disability, an in-service incurrence or aggravation of a disease or injury, and a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d) (2016).

In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of the in-service injury if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation.  See 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017).

For a veteran who 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 chronic disease is shown as such during service or within one year of discharge from service.  See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2017).  When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection.  See 38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Sensorineural hearing loss and tinnitus are organic diseases of the nervous system.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015).

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent.  See 38 C.F.R. § 3.385 (2015).

The absence of documented hearing loss at service separation does not alone foreclose a grant of service connection for subsequently demonstrated hearing loss.  Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may provide a basis for a grant of service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App 155 (1993).

The Veteran meets the criteria under 38 C.F.R. § 3.385 for a hearing disability in both ears, and he has also been diagnosed with tinnitus.  See November 2011 VA examination report.  The Veteran is a combat veteran of the Vietnam War who served received the Purple Heart and the Combat Action Ribbon.  See DD Form 214.  The Veteran has competently and credibly reported exposure to acoustic trauma from tank noise, tank guns, artillery fire, and mortar rounds that exploded near him in Vietnam.  The reported noise exposure is consistent with the circumstances, conditions, or hardship of his combat service.  The Board finds that the Veteran was exposed to harmful noise during service.  See 38 U.S.C.A. § 1154(b) (2017).

The Veteran states that he experienced hearing loss and ringing of the ears during service and that the symptoms have continued to the present.  His spouse testified that she has observed his hearing loss since she met him in 1974.   See transcript of October 2016 Board hearing.  Hearing loss and tinnitus are disabilities capable of lay observation.  See 38 C.F.R. § 3.159(a)(2) (2017); Layno v. Brown, 6 Vet. App. 465 (1994); Kahana v. Shinseki, 24 Vet. App. 428(2011); Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The Board finds the Veteran to be competent and credible in his report of an in-service onset of hearing loss and tinnitus and continuous symptoms to the present.

The Veteran's service treatment records do not document hearing loss or tinnitus symptoms.  The Veteran's examination report of October 1971 notes no hearing loss or tinnitus symptoms, but no pure tone testing was performed at separation.  The audiometric chart in the report is blank.  A whisper test score of 15 is noted.  VA has determined that whispered voice tests are subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure.   See VA Training Letter 10-02 (March 18, 2010).  Accordingly, the Veteran's exit examination report is of very limited probative value, and the Board finds it not to be more probative than the Veteran's competent, credible report of in-service hearing loss and ringing of the ears that has continued to the present day.

Evidence that tends to weigh against the claim is the November 2010 VA examination report, which attributed the Veteran's hearing loss and tinnitus not to service but to post-service occupational noise for which the Veteran wore hearing protection.  However, the acoustic trauma to which the Veteran was exposed during service, specifically the mortar rounds that exploded approximately 20 feet from him, was not considered by the examiner, and on that basis the examiner's negative nexus opinion is entitled to significantly less probative value.  Here, it appears that the VA examiner was unaware of the degree of noise exposure experienced by the Veteran during service.  The Veteran, who has PTSD, testified that he "just shut down" and did not wish to talk further to the examiner after he was asked during the examination, "How many times did you shoot your gun in Vietnam?"  See transcript of October 2016 Board hearing.

Hearing loss and tinnitus, as organic diseases of the nervous system, are subject to the presumption of service connection for chronic diseases that manifest during service or to a compensable degree during service within the presumptive period following service.  For the reasons stated above, the Veteran's current bilateral hearing loss and tinnitus, not being clearly attributable to an intercurrent cause, are presumed to be related to the hearing loss that manifested during service.  See 38 C.F.R. § 3.303(b) (2017); Brannon v. Derwinski, 1 Vet. App. 314, 315 (1991).


ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.


REMAND

I.  PTSD

The Veteran seeks entitlement to an initial rating higher than 10 percent for his service-connected PTSD.  See notice of disagreement of August 2011.  The Veteran was last afforded a VA examination for this condition in November 2010.  At the October 2016 Board hearing, the Veteran stated that his PTSD symptoms had worsened.  In light of the Veteran's report of a worsened condition since the last VA medical examination, a new VA examination is warranted to ascertain the current severity of the Veteran's service-connected PTSD.  VA's duty to assist includes the conduct of a contemporaneous medical examination, especially when it is contended that a service-connected disability has become worse.  See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990).


II.  TDIU

A claim for TDIU is part and parcel of an increased rating claim when raised by the record.  See Rice v. Shinseki, App. 447 (2009).  At the October 2016 Board hearing, the Veteran stated that his last employment ended as a result of his angry outbursts and that he does not believe himself to be capable of maintaining a job because of his PTSD symptoms.

As explained above, the Veteran's claim for a higher PTSD rating is being remanded for a medical evaluation as to the condition's current severity.  The Veteran's claim of entitlement to TDIU is inextricably intertwined with the remanded PTSD claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Development of the Veteran's claim of entitlement to a rating increase for service-connected PTSD may impact his claim for a TDIU.  Therefore the Board will also remand the TDIU claim.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an examination to ascertain the nature and severity of his service-connected PTSD.  The entire claims file must be made available to, and be reviewed by, the examiner.  The examiner should specifically comment on how the Veteran's PTSD, in conjunction with his other service connected disabilities, impacts his employability.

2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the remanded claims.  If any sought benefit remains denied, issue a supplemental statement of the case, and provide the Veteran and his representative with the requisite period of time to respond.  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 or 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).




______________________________________________
DONNIE R. HACHEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs