Citation Nr: 18100732 Decision Date: 04/19/18 Archive Date: 04/19/18 DOCKET NO. 14-28 529 DATE: April 19, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 2 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The probative, competent evidence is against a finding that the Veteran has a current hearing loss disability. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2003 to February 2007, to include service in Iraq. In November 2016, the Veteran testified at a Board of Veterans’ Appeals (Board) videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 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 Board has thoroughly reviewed all of the evidence in the Veteran’s claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). However, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. The Veteran asserts that he has bilateral hearing loss as a result of noise exposure during active duty service. For purposes of applying the laws administered by the Department of Veterans Affairs (VA), impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. Upon review, the Board finds no evidence of the presence of a VA hearing loss disability during the pendency of the appeal. While the record reflects that the Veteran has complained of trouble hearing, no audiological examination of record reflects a hearing loss for VA purposes. In that regard, when the Veteran underwent VA examination in May 2012, Maryland CNC speech recognition scores were 100 percent in the left ear and 98 percent in the left ear. Puretone thresholds, in decibels, were as 10, 5, 5, 10, and 5 in the right ear, and 10, 5, 5, 15, and 10 in the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. There are no other audiometric results of record during the relevant time period. Furthermore, while the Veteran is competent to report what comes to him through his senses, including diminished hearing capacity, he is not competent to assess that he has a hearing loss disability for VA purposes. See Layno v. Brown, 6 Vet. App. 465 (1994). Such determination may only be made by audiometric and CNC Word List speech recognition testing. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Accordingly, while the Board is sympathetic to the fact that the Veteran experiences trouble hearing, it must find that the preponderance of the evidence is against a finding that the Veteran has a hearing loss disability and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REMANDED ISSUES Entitlement to service connection for tinnitus and entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder are remanded for additional development. With respect to the claim for entitlement to service connection for tinnitus, a VA opinion was obtained in May 2012; however, in support of the negative opinion, the examiner stated only that the Veteran’s hearing was normal. The Board finds this rationale to be insufficient. Accordingly, the Board finds remand is warranted so that an addendum opinion may be obtained. With respect to the claim for entitlement to service connection for an acquired psychiatric disorder, a June 2012 examiner opined that, while the Veteran did not meet the diagnostic criteria for PTSD, he did meet the criteria for a diagnosis of depressive disorder. The examiner did not, however, provide an opinion as to whether depressive disorder or any other acquired psychiatric disorder may be related to the Veteran’s service. In light of that, and due to the fact that whether a diagnosis of PTSD is warranted should be considered under the criteria of the newest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the Board finds remand of the claims is warranted so that a new VA examination and opinion may be obtained. See 38 C.F.R. § 4.125 (2017). The matters are REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to the claims for entitlement to service connection for tinnitus and an acquired psychiatric disorder. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e) (2017), to include notifying the Veteran of the unavailability of the records. 2. After the above records have been associated with the file, send the claims file to a VA examiner for review and to provide an additional opinion regarding tinnitus. If the examiner determines that a new examination is needed to respond to the question posed, one should be scheduled. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s tinnitus arose in service or is otherwise related to service, to include as due to the Veteran’s reported in-service noise exposure. The examiner should explain the reasoning for any opinion provided. The medical significance of any findings should be addressed as the Board is precluded from making medical findings. 3. After the above records have been associated with the file, schedule the Veteran for a VA psychiatric examination. The claims file should be reviewed by the examiner. All tests and studies deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should respond to the following, using the criteria put forth by the DSM-5: (a) Please provide diagnoses for any psychiatric disorders identified. If PTSD is diagnosed, the examiner should identify the stressors upon which the diagnosis is based. (b) For any psychiatric disorder diagnosed at any point during the course of the claim, specifically including depressive disorder, is it at least as likely as not (50 percent probability or greater) that the disorder had onset in or is otherwise related to service? The examiner should explain the medical basis for any conclusions reached. 4. After completing the requested actions, and any additional actions deemed warranted, the Agency of Original Jurisdiction should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for appellate consideration, if in order. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel