Citation Nr: 20006567 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 18-01 321 DATE: January 28, 2020 ORDER Service connection for hearing loss is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for alcoholism secondary to a service-connected psychiatric disability is remanded. FINDING OF FACT The Veteran does not have a current hearing loss disability that meets the criteria of 38 C.F.R. § 3.385. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2012 to June 2014. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing in November 2019 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for hearing loss The Veteran seeks service connection for bilateral hearing loss. He asserts he has hearing loss as a result of his noise exposure during service. The Veteran reported being constantly exposed to loud noises since he served as an indirect fire infantryman. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b) (2018). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2018). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may 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. See 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). In this case, organic diseases of the nervous system, including hearing loss, are listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) potentially applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic diseases in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran underwent a VA examination in April 2017. The examiner reported speech discrimination score on the Maryland CNC of 100 percent in the right ear and 100 percent in the left ear as well as auditory thresholds of 10 decibels or less in frequencies of 500, 1000, 2000, 3000, or 4000 Hertz. The Board notes that while the results of the April 2017 VA examination reflected that the Veteran did not have hearing loss in either ear as defined in 38 C.F.R. § 3.385, the Veteran reported subjective tinnitus on the April 2017 VA examination. The Board notes that the Veteran has been service connected for tinnitus. Similarly, while the Veteran testified that he noticed hearing loss following a live fire exercise, the Veteran’s Service Treatment Records (STRs) reflect that he was given audiograms in August 2012, August 2013, and March 2014, which do not show that the Veteran had a hearing loss disability as defined by 38 C.F.R. § 3.385 while in service. Rather, the audiograms sometimes reflected hearing loss of 20 decibels or less. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (explaining that the threshold for normal hearing is from zero to 20 decibels). Therefore, the record does reflect hearing loss for VA purposes while in service. The Veteran’s representative stated at the November 2019 hearing that he intended to schedule the Veteran for a private audiogram, but no private audiogram has been associated with the claims file. In summary, there is no competent medical evidence that indicates that the Veteran has a current hearing loss disability in either ear that meets VA disability criteria. The Veteran is competent to report symptoms of hearing loss that he may experience as a layperson, and the Veteran has reported that he first noticed his hearing loss during service after live fire exercises and made complaints to officers during service. He further testified that he was told not to wear hearing protection because it would decrease his ability to hear during maneuvers. However, there is no evidence in the record that the Veteran is competent to diagnose a bilateral hearing loss disability because hearing loss is identified by objective and specific audiometric and speech recognition testing. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he has personal knowledge); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not demonstrated he has the knowledge, education or training to provide an opinion in such a complicated matter and therefore his opinion as to a diagnosis of hearing loss is not competent evidence. Id. While the Veteran is competent to testify to continuity of symptoms of hearing loss, the Veteran’s senses cannot provide an accurate gauge of when his hearing loss would meet the VA standard for disability. The evidence provided by the April 2017 audiometric testing, as well as the Veteran’s in-service audiograms, outweighs the Veteran’s opinion in this area and demonstrates that the Veteran’s current hearing loss in either ear does not currently meet the VA standards for disability. As such, the Veteran’s claim for service connection for a bilateral hearing loss disability cannot currently be granted, as the initial criterion for service connection has not been met. As such, the Board finds that the preponderance of the evidence is against the claim for a hearing loss disability of either ear. Consequently, because a preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for a bilateral hearing loss disability is denied. See 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disability is remanded. The Veteran is currently service connected for a psychiatric disability and is rated at 30 percent. The Veteran believes that his psychiatric disability is more severe than it is currently rated. The Veteran testified that he has been attending therapy sessions at the Lakewood Vet Center since August 2017 and that he receives psychiatric treatment and is prescribed medication by a psychiatrist from Brick Psychiatrics. The claims file contains a January 2018 statement from the Veteran’s counselor at the Vet Center but no treatment records. Additionally, there are no records associated in the claims file from Brick Psychiatrics. The Board also notes that records were requested from Dr. G.M., a psychologist who treated the Veteran between June 2014 and September 2014. In response to a request from the RO, Dr. G.M. provided a letter, but no other treatment records. As there are outstanding medical records which could assist the Veteran in his claim, a remand is necessary for the RO to attempt to obtain those records. Additionally, the Veteran last underwent a VA examination for his psychiatric disability in June 2017. The Veteran indicated at the November 2019 hearing that his Vet Center counselor told him that his symptoms have been getting worse and that she referred him to treatment with a psychiatrist. As there is an indication that the disabilities on appeal may have increased in severity since his June 2017 VA examination, the Board finds it necessary to remand the claim for a contemporaneous examination to ensure that VA meets its duty to assist. 38 C.F.R. § 3.159 (c)(4)(i) (2018); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran’s contention that the pertinent disability had increased in severity). 2. Entitlement to service connection for a back disability is remanded. The Veteran claims that he has a current back disability which is related to his active duty service. He claims that he injured his back while carrying heavy parts to mortars during service, and that he continues to have back pain currently. The Veteran’s STRs show that he on his March 2014 separation examination he reported having recurring back pains which he treats with Tylenol. He also testified at the hearing that he went to sick call “several times” because he noticed back pain as he was walking around. He testified that after separation he sought treatment for his back from a chiropractor, but records from the chiropractor’s treatment have not been associated with the claims file. On remand, the RO should attempt to obtain treatment records from the Veteran’s chiropractor and associate those records with the claims file. Additionally, the Veteran has not yet undergone a VA examination for his claimed back disability. In disability compensation claims VA must 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 manifested during an applicable presumptive period, 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 (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, there is competent evidence of persistent recurrent symptoms as the Veteran has testified that his back began hurting during service and continues to this day. Additionally, the Veteran has testified that he has been treated for back pain by a chiropractor, and those records will be requested on remand. The Veteran has also testified that he carried heavy objects during service. Finally, the Veteran testified that his chiropractor indicated that his current back pain is related to his active duty service, but there is insufficient competent medical evidence to decide the claim. Therefore, the Board finds that the burden in McLendon has been met, and the Veteran should be scheduled for a VA examination related to his claimed back disability. 3. Entitlement to service connection for alcoholism secondary to a service-connected psychiatric disability is remanded. The Veteran is currently service-connected for a psychiatric disability and claims that he suffers from alcoholism due to his psychiatric disability. The Veteran last underwent a mental health VA examination in June 2017. At that time, he was not diagnosed with an alcohol use disorder, although he stated several times during the examination that he abuses alcohol. At the November 2019 hearing, the Veteran testified that he begins drinking when he gets home from work and usually drinks a case or a case and a half of beer per week as well as a bottle of whiskey. He further testified that he is receiving treatment for alcohol abuse from the Lakewood Vet Center. His STRs indicate that he was referred to the Army Substance Abuse Program (ASAP) because he was found in possession of alcohol while underage. On remand, the Veteran’s treatment records from the Lakewood Vet Center should be requested and associated with the claims file. In addition, the Veteran should be afforded a VA examination to identify if he has a current diagnosis for alcoholism and, if so, whether it is related to his service-connected psychiatric disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the Vet Center in Lakewood. After authorization is received, obtain any treatment records for the period from August 2017 to the Present. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any clinician or facility that treated the Veteran for his claimed disabilities, to include Dr. K., and Brick Psychiatrics. Make two requests for the authorized records from any physician or facility identified by the Veteran, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected psychiatric disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disability alone. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including carrying heavy objects during service. The examiner must also opine whether any currently diagnosed back disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. A complete rationale for all opinions is required. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any alcohol use disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should opine whether any currently diagnosed alcohol use disorder is at least as likely as not (1) proximately due to his service-connected psychiatric disability, or (2) aggravated beyond its natural progression by his service-connected psychiatric disability. (Continued on the next page)   A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.