Citation Nr: 20021204 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 15-45 001 DATE: March 24, 2020 ORDER Service connection for bilateral hearing loss is granted. REMANDED Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran has a legally cognizable bilateral hearing loss disability; it is at least as likely as not that it was incurred in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1969 to March 1972, to include service in Vietnam. His decorations include the Vietnam Service Medal, the Vietnam Campaign Medal, the Air Medal, and the Bronze Star Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Chicago, Illinois. In a February 2020 Informal Hearing Presentation, the Veteran’s representative asserted that the Veteran was unable to maintain substantially gainful employment due to his service-connected disabilities. The United States Court of Appeals of Veterans Claims (Court) has held that if a claimant or the record reasonably raises the question of whether a veteran is unemployable due to the disability for which an increased rating is being sought, then part and parcel of that claim for an increased rating is whether a TDIU is warranted as a result of that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the issue of entitlement to a TDIU is also on appeal. Entitlement to service connection for bilateral hearing loss The Veteran seeks to establish service connection for bilateral hearing loss. He maintains that he experienced noise exposure in service, that his hearing loss began in service, and that he has experienced continuous symptoms ever since. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 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). Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these 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. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including sensorineural hearing loss—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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 Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159 (a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is no dispute that the Veteran has a current bilateral hearing loss disability as defined by VA. The report of an August 2012 VA audiometric examination clearly reflects, among other things, right ear auditory thresholds of 60 decibels at 3000 Hertz and 70 decibels at 4000 Hertz. The examination report also reflects left ear auditory thresholds of 40 decibels at 2000 Hertz, 60 decibels at 3000 Hertz, and 70 decibels at 4000 Hertz. Nor is there any real dispute that the Veteran was exposed to hazardous noise during service. The August 2012 VA examiner noted that the Veteran was a helicopter door gunner and had approximately 20 months of combat conditions in Vietnam. The Veteran also reported to the examiner that he had experienced tinnitus since M-14 machine gun fire during basic training. Finally, the Veteran’s DD Form 214 demonstrates that his military occupational specialty was Helicopter Repairman. As to the nexus, or link, between the Veteran’s current disability and service, the Board notes, as an initial matter, that he is competent to provide statements with respect to the onset and presence of diminished hearing, inasmuch as such symptoms are observable by a lay person. The Board finds, moreover, that his statements with respect to having experienced hearing loss in service are credible. The Board notes that the VA audiologist who evaluated the Veteran in August 2012 stated that she could not provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation. She noted that testing was found to be within normal limits at enlistment, but that findings at separation were incomplete. She reasoned that because some auditory thresholds were not recorded at separation, the presence or absence of hearing loss or significant changes from enlistment to separation could not be stated with certainty. The Board finds the August 2012 examination inadequate. While the Veteran’s entrance and separation examinations are incomplete, they nevertheless contain sufficient data to reflect clear hearing threshold shifts and/or abnormal hearing during service. The Veteran’s July 1969 entrance examination shows that audiometric testing revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 6000 8000 Right ear 10 0 0 Not tested 10 Not tested Not tested Left ear 20 10 0 Not tested -5 Not tested Not tested The Veteran’s March 1972 separation examination shows that audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 6000 8000 Right ear Illegible Illegible 15 15 Not tested Not tested Not tested Left ear Not tested Not tested Not tested 30 20 25 Not tested The above data reveal upward thresholds shifts of 15 decibels in the right ear at 2000 Hertz and 25 decibels in the left ear at 4000 Hertz. The data also reveal abnormal hearing in the left ear at 3000 and 6000 Hertz. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (indicated that thresholds above 20 decibels are indicative of at least some degree of hearing loss). Despite the omission of numerous scores in these in-service audiograms, there is still clear evidence of upward threshold shifts and abnormal hearing in service. The examiner’s failure to consider those facts renders the opinion inadequate. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Inasmuch as hearing loss is recognized as a chronic disease, it can be service connected on the basis of continuity of symptomatology alone, without a medical nexus opinion. See, e.g., Walker, supra. On balance, and taking into account the totality of the evidence—including the Veteran’s credible reports of noise exposure in service, recorded evidence of upward threshold shifts in the both ears during service, evidence of abnormal hearing in the left ear at service separation, and the Veteran’s credible statements with respect to onset and continuity of symptoms—the Board is persuaded that the criteria for an award of 683621service connection for bilateral hearing loss have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal of this issue is granted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. The Veteran contends that his PTSD warrants a rating in excess of 70 percent. The Veteran was afforded a VA examination to assess the nature and etiology of his PTSD in July 2012. The examiner diagnosed PTSD and found that it was the Veteran’s only mental health diagnosis. She noted many symptoms for rating purposes and opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In its August 2012 rating decision, the RO granted service connection for PTSD and assigned a 70 percent rating after finding that the overall evidentiary record showed that the severity of his disability most closely approximated the criteria for a 70 percent disability evaluation. The Veteran submitted a May 2017 statement from R. R., L.C.S.W., his treating VA mental health care provider. Mr. R. stated that he had treated the Veteran since December 2014, and that the Veteran had diagnoses of PTSD, major depressive disorder, and dysthymic disorder. He also outlined several symptoms that the Veteran exhibited, including that the Veteran felt he was unable to connect with others, that he had no close friends and was distrustful of others, and that he reported that he was unable to sustain work efforts due to PTSD and depressive symptoms. Additionally, in a December 2017 document, the Veteran stated that the July 2012 VA examiner looked very much like his high school guidance counselor, and that as a result he gave answers to his questions as if it were a job interview, building himself up and diminishing his actual condition. He added that he did not mention his inability to work. Mr. R.’s May 2017 statement indicates that the Veteran’s symptoms may have worsened since the July 2012 VA examination. The Veteran’s statement that he diminished his symptoms at the examination indicates the examination report may not fully account for his symptoms. Under the circumstances, the Board finds that a new examination is warranted. The Board also notes that the most recent VA treatment records in the file are from June 2012. Mr. R.’s May 2017 statement indicates that the Veteran has received significant treatment for his PTSD since that time. On remand, efforts should be made to obtain updated VA treatment records. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). 2. Entitlement to a TDIU is remanded. As an initial matter, the Board notes that Veteran is currently service connected for PTSD, tinnitus, and bilateral hearing loss. The Veteran contends that he is unable to sustain substantially gainful employment due to his service-connected disabilities. His representative asserted in a February 2020 IHP that he was unable to maintain employment due to persistent anxiety attacks, avoidant behavior, inability to leave his home due to anxiety and hyperarousal, or even answer the phone. At his August 2012 VA examination for hearing loss and tinnitus, he stated that his hearing loss caused difficulty when others called him, and that his tinnitus affected his ability to work inasmuch as it sometimes affected his ability to fall asleep. To date, the Veteran has not submitted a VA form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). The Veteran’s current employment status is unclear. He reported in a March 2012 VA treatment record that he had his own business, but also reported that he did the minimum he needed to do to survive. He reported in a June 2012 VA treatment record that his daily routine included working outside. At his July 2012 VA examination, he reported that he was self-employed and worked as a handyman. At present, the claims file does not contain sufficient evidence to adjudicate the claim, including the average number of hours per week the Veteran works, the amount of his earnings, or whether and when he stopped working completely during the pendency of the claim. The Board finds that a remand is warranted in order to obtain additional information necessary to adjudicate the claim. These matters are REMANDED for the following action: 1. Ask the Veteran to complete and return a VA form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination by an appropriate clinician for purposes of assessing the current severity of his service-connected PTSD. 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. To the extent possible, the examiner should discuss the effect of the Veteran’s PTSD on occupational functioning and activities of daily living. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.