Citation Nr: 20021615 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-32 961 DATE: March 26, 2020 ORDER Service connection for bilateral hearing loss is denied. REMANDED Service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 16, 1967 to June 30, 1967. In June 2019, the Board remanded these matters for further development. At that time, the Board noted that the Veteran had withdrawn his request for a hearing before a Veterans Law Judge and recharacterized the mood disorder new and material evidence claim to encompass any acquired psychiatric disorder. The RO initially denied service connection for a mood disorder in January 1998, with additional final October 2000 and September 2001 rating decisions. The Board finds, however, that the RO has recently associated additional evidence with the claim, including additional relevant service personnel records. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identified service records forwarded to VA any time after VA’s original request for service records. 38 C.F.R. § 3.156(c)(1)(ii). As such, new and material evidence was not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Such records fall within the scope of 38 C.F.R. § 3.156(c) and, as such, the Veteran’s psychiatric claim is reviewed on a de novo basis. 1. Service connection for bilateral hearing loss. The Veteran contends that “I have been unable to hear properly since I was discharged.” Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Although the Veteran has a current diagnosis of bilateral hearing loss, the most probative evidence does not shows in-service noise exposure occurred and that the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hearing loss began during service or is otherwise related to an in-service injury, event, or disease. The Veteran served for less than 2 months, from May 16, 1967 to June 30, 1967. Less than 2 weeks into his service, a May 28, 1967 service treatment record documented that due to his personal problems the Veteran was referred to legal. By June 22, 1967, a service personnel record documented that the Veteran was recommended for discharge due to fraudulent enlistment. The Veteran never completed basic training and did not have a military specialty. The Veteran denied noise exposure from weapons and other hazardous noise in service to the August 2019 VA examiner. Given the above evidence, the Board finds that in-service noise exposure is not supported by the record. To the extent that the Veteran currently claims to have chronic hearing loss since service, the Board finds that such a report is not credible. Following service, the Veteran filed his first claim for benefits in 1997, but did not claim hearing loss. Similarly, VA medical records do not document to complaints of, or treatment for, hearing loss when he first started receiving VA treatment. Although the Veteran filed additional psychological claims in April 2000 and July 2001, the Veteran did not file a claim for hearing loss until 2013, despite having a diagnosis of hearing loss in June 2000. The Veteran himself has denied in-service noise exposure. Given the Veteran’s inconsistencies, the Board finds that his claim of chronic hearing loss since service is not credible. Further, the August 2019 VA examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not related to an in-service injury, event, or disease. The rationale was that service treatment records and lay statements do not support hazardous noise exposure during military service. An MOS was not assigned on the Veteran’s DD-214 and the Veteran denied exposure to weapons during military service. Normal hearing sensitivity was documented at enlistment on April 27, 1967, but did not hold audiometric threshold testing at separation, with only whispered voice test scores bilaterally. The whispered voice test is a gross measure of hearing acuity, does not provide frequency specific information, and is subjective and insensitive to the high frequency regions of hearing. It is possible to present with hearing loss and pass this measure. It is not possible to confirm and/or rule out hearing loss or significant shifts to hearing with use of the whispered voice test. However, given the lack of evidence supporting hazardous noise exposure and hearing loss during military service, the Veteran’s bilateral hearing loss is less likely than not caused by, or the result of, hazardous noise exposure during military service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA medical records generally document to complaints of, or treatment for, hearing loss, but did not provide any etiology opinions. The Board notes, in passing, that VA medical records also document that the Veteran worked in a coal mine for over 30 years after service, which may have contributed to post-service noise exposure. Consequently, the Board gives the most probative weight to the August 2019 VA examiner’s opinion. As the preponderance of the most probative evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for bilateral hearing loss is not warranted. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder is remanded. In his July 2016 VA Form 9, the Veteran reported that he has had anxiety and depression since his service (May 16, 1967 to June 30, 1967). In a July 2001 statement, he claimed that some guys in service had been burned in Vietnam and some were shot. He “started to panic because I was in basic training…couldn’t do it after that. I started psyching out.” The Board cannot make a fully-informed decision on the issue of an acquired psychiatric disorder, because no VA examiner has opined whether he has had such a disorder since service. The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records and associate them with the claims file. 2. After record development has been accomplished, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. The claims file should be reviewed. Service treatment records (including the June 1967 record associated with his military personnel records), VA medical records, and lay statements (such as his one from July 2001) should be considered. (Continued on the next page)   A full explanation as to EACH medical opinion reached should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.