Citation Nr: 1807494 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 15-19 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a psychiatric disorder, to include with alcohol dependency. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from October 1989 to November 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Pursuant to the holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Veteran's claim for anxiety with alcohol dependency has been considered a claim for any mental disability that may reasonably be encompassed by several factors including: the Veteran's description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or VA obtains in support of the claim. In November 2017, the Veteran testified at a video conference Board hearing before the undersigned Veterans' Law Judge. The hearing transcript is of record and reflects the record was held open for 60 days from the date of the hearing to allow the Veteran to submit additional evidence. The record does not reflect the Veteran has submitted any additional evidence during the allotted period, thus the Board may proceed with appellate review. The Veteran was represented by an attorney, Penelope E. Gronbeck, at the time these claims were certified to the Board in August 2017. In January 2018, after the certification of the appeal to the Board, the Veteran's attorney's firm submitted a statement, which equates to a motion to withdraw as the representative in the appeal. The January 2018 statement reported that the reason for the withdrawal was due to the Veteran's request. As the withdrawal was requested pursuant to the Veteran's request, the Board thus finds that the continuation of representation is impractical, good cause has been shown for withdrawal, and the attorney's representation is terminated. See 38 C.F.R. § 20.608 (b) (2017). Thus, the Veteran is presently considered to be pro se in this case. 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) (West 2012). The issue of entitlement to service connection for a psychiatric disorder, to include with alcohol dependency, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all doubt in his favor, the Veteran's bilateral hearing loss is as likely as not related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim for entitlement to service connection for bilateral hearing loss, granted herein, the Board observes that the grant of the claim renders moot lack of compliance, if any exists, with any statutory and regulatory notice and duty to assist provisions, including pursuant to 38 C.F.R. § 3.103 (c)(2) and Bryant v. Shinseki, 23 Vet App 488 (2010). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (2017). To prevail on a service connection claim on a direct incurrence basis, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In addition, certain chronic diseases, such as sensorineural hearing loss, as organic diseases of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In Hensley, 5 Vet. App. 155 (1993), it was also held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Veteran asserts that he has bilateral hearing loss as a result of noise exposure during active service. Specifically, in November 2017 testimony, the Veteran argued his hearing loss was a result of in-service noise exposure. Turning to the first element of service connection, the existence of a present disability, the Board finds that the evidence of record confirms the Veteran has hearing loss disability for VA purposes. VA obtained a hearing loss and tinnitus disability benefits questionnaire in July 2012 and audiometric testing revealed that the Veteran had hearing loss disability for VA purposes in both ears. Specifically, July 2012 Maryland CNC testing revealed recognition scores of 88 percent, bilaterally. 38 C.F.R. § 3.385. Thus, the current disability element for bilateral hearing loss is established by the evidence. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. A review of the Veteran's service treatment records do not reference difficulty hearing, or symptoms thereof, during service and a September 1990 in-service examination, conducted prior to separation from service, did not demonstrate hearing loss for VA purposes. Furthermore, although a February 1990 service treatment record provided in-service audiometric testing, which also did not demonstrate hearing loss for VA purposes, the February 1990 service treatment record did report the Veteran was routinely exposed to hazardous noise. Furthermore, in November 2017 testimony, the Veteran reported noise exposure during service. As the Veteran's service records are supportive of his competent and credible contentions regarding exposure to loud noises, the element of the incurrence of an in-service injury is met for bilateral hearing loss. With respect to the third requirement for service connection, competent evidence of a nexus between bilateral hearing loss disability, and an in-service disease or injury, the Board further finds this element is also met as there is competent, credible clinical evidence of record that the Veteran's bilateral hearing loss is causally related to active service. In this regard, as to the origin of the Veteran's bilateral hearing loss, the July 2012 VA examiner opined the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. In support of such, the July 2012 examiner noted the Veteran's April 1989 enlistment physical and subsequent hearing tests through September 1990 indicated the Veteran's hearing was within normal limits, bilaterally. Therefore, the July 2012 VA examiner found it was not likely that the Veteran's current hearing loss began during military service. However, the July 2012 examiner's rationale lacks probative value as the absence of in-service evidence of some degree of hearing loss per Hensley, or a hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385), during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Notably, in November 2017 testimony, the Veteran testified to his difficulty with maintaining employment, which is not suggestive of sustained acoustic trauma from occupational noise exposure. Furthermore, in November 2017 testimony, the Veteran linked his hearing loss and his service-connected tinnitus to the same etiology. Notably, in this regard, the July 2012 VA examiner linked the Veteran's tinnitus to in-service noise exposure and found that although the exact etiology of tinnitus was unknown, it was frequently associated with hearing loss and noise exposure. The July 2012 examiner explicitly linked the Veteran's tinnitus to his military noise exposure. Thus, as the July 2012 VA examiner found the Veteran's tinnitus was associated military noise exposure and hearing loss, such also suggests that the Veteran's hearing loss was also associated with military noise exposure. Thus, at the least, the evidence raises a reasonable doubt as to whether the Veteran's current bilateral hearing loss disability is etiologically related to noise exposure in service. The evidence shows that the Veteran presently has bilateral hearing loss disability and had exposure to acoustic trauma in service. There is no demonstration of any intercurrent cause, such as occupational noise exposure, sufficient to preclude an etiological relationship to service. Thus, resolving doubt in the Veteran's favor, the Board finds the Veteran's bilateral hearing loss disability is related to service. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for bilateral hearing loss disability is warranted. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. REMAND VA will provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has not yet been afforded a VA examination with a medical opinion in connection with his claim for entitlement to service connection for a psychiatric disorder. The Veteran, in November 2017 testimony, reported that his mental problem onset during service with manifestations of nervousness, trouble dealing with people, anxiety, and difficulty with his memory. The Veteran is competent to testify to his experiences and symptomatology capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He also testified that the reason for his separation from service of unsatisfactory performance, as documented by his DD-214, was due to manifestations of his psychiatric disability. In addition, a November 1990 service treatment record reflects treatment for alcohol use. Thus, in light of the above, the Board finds that a VA examination is required to ascertain whether any diagnosed acquired psychiatric disorder, to include with alcohol dependency, is related to active service. See McLendon, 20 Vet. App. at 81. Furthermore, in light of the foregoing assertion of a link between the Veteran's in-service unsatisfactory performance and a psychiatric disability, efforts should be undertaken to obtain the Veteran's complete service personnel records. Thus, on remand, the Veteran's complete service personnel records should be obtained and associated with the claims file. Any unsuccessful attempts to obtain this evidence should be properly documented in the claims file, to include the preparation of a memorandum of unavailability, if warranted. Additionally, in November 2017 testimony, the Veteran reported he received suicide prevention treatment on August 9, 2017, from Primary Health Care in Monroe, Louisiana. He also reported private psychiatric treatment from a hospital in Cameron, Louisiana, on Valentine's Day, February 14, 1994. The record does not reflect these private psychiatric treatment records have been associated with the claims file. Thus, the necessary authorization should be obtained from the Veteran, to obtain any relevant identified private psychiatric treatment records. 38 U.S.C. § 5103A (b); 38 C.F.R. § 3.159 (c)(1). Finally, in November 2017 testimony, the Veteran reported treatment from the VA Community Based Outpatient Clinic in Monroe, Louisiana, part of the Overton Brooks VA Medical Center (VAMC), beginning on October 2, 2017. Thus, on remand, any and all VA treatment records from the Overton Brooks VAMC, to include all associated outpatient clinics, beginning on October 2, 2017, should be obtained and associated with the claims file. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(2). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Accordingly, the case is REMANDED for the following actions: (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. Obtain any and all of the Veteran's VA treatment records from Overton Brooks VAMC, to include all associated outpatient clinics, beginning on October 2, 2017, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. 2. Contact the Veteran and request that he identify all private psychiatric treatment providers, to include on August 9, 2017, from Primary Health Care in Monroe, Louisiana, and on February 14, 1994, from a hospital in Cameron, Louisiana, and provide VA the necessary authorization to obtain the identified private treatment records. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested identified documents. 3. Obtain and associate with the record the Veteran's service personnel records. Any unsuccessful attempts to obtain this evidence should be properly documented in the claims file, to include the preparation of a memorandum of unavailability, if warranted. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. 4. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of any psychiatric disability diagnosed proximate to and/or during the pendency of the appeal. The complete record, to include a copy of this remand, and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. Any medically indicated special tests should be accomplished, and all subjective complaints and objective symptoms must be documented. All psychiatric disabilities should be identified. As to each diagnosed psychiatric disability, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the diagnosed psychiatric disorder was present in service, was caused by service, or is otherwise related to service. The examiner should consider the Veteran's November 2017 testimony that his psychiatric problem onset during service with manifestations of nervousness, trouble dealing with people, anxiety, and difficulty with his memory, as well his assertion that the reason for his separation from service of unsatisfactory performance, as documented by his DD-214, was due to manifestations of his psychiatric disability. The examiner should also consider the November 1990 service treatment record which reflected treatment for alcohol use. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 5. The Veteran must be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). 6. Finally, and after undertaking any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought is not granted, furnish the Veteran with a supplemental statement of the case and afford the appropriate opportunity to respond before the record is returned to the Board for further review. 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 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 (West 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs