Citation Nr: 20042004 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 12-17 490 DATE: June 19, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED In addition, the following issues are remanded: entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD); entitlement to a total disability rating based upon unemployability (TDIU), to include on an extraschedular basis; and entitlement to special monthly compensation (SMC) at the housebound rate. FINDING OF FACT The Veteran’s bilateral hearing loss manifested many years after service, and has not otherwise been related to that service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to April 1969, which included service in the Republic of Vietnam (Vietnam) during the Vietnam Era. In August 2017, the Veteran testified before the undersigned Veterans’ Law Judge at a travel hearing; a transcript has been associated with the claims file. The Veteran’s claims were most recently before the Board of Veterans’ Appeals (Board) in February 2018. At that time, the Board granted the Veteran’s claim for service connection for tinnitus, denied the Veteran’s claim for a rating in excess of 50 percent for PTSD, and remanded the Veteran’s claims for service connection bilateral hearing loss and entitlement to a TDIU. The requested development for the Veteran’s claims for service connection for bilateral hearing loss and TDIU was completed and the claims have returned to the Board. After the Board’s denial of the claim for an increased rating for PTSD, the Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court vacated and remanded the Veteran’s claim for an increased rating for reasons discussed in the remanded section below. After the most recent supplemental statement of the case (SSOC), the Veteran submitted a vocational assessment on his claim for a TDIU. The Veteran provided a waiver of agency of original jurisdiction (AOJ) review of this evidence. Thus, the Board can review the evidence in the first instance. 38 C.F.R. § 19.37b; 38 C.F.R. § 20.1305. Service Connection 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has bilateral hearing loss is related to exposure to acoustic trauma during service. He is currently diagnosed with bilateral hearing loss for VA compensation purposes. Further, acoustic trauma during service is conceded. The remaining inquiry is whether the hearing loss is related to the acoustic trauma. The Veteran was afforded a VA examination in February 2011. However, the Board previously found the opinion rendered at this examination inadequate because it cited, without more, that his hearing remained within normal limits and unchanged at the time of separation. See Ledford v. Derwinksi, 3 Vet. App. 87 (1992) (holding that the absence of evidence demonstrating a complaint, treatment, or diagnosis of hearing loss in service alone is not fatal to a service connection claim for hearing loss). Thus, it remanded the Veteran’s claim for an opinion to determine whether the Veteran’s bilateral hearing loss was etiologically related to service based on the audiometric findings in the file and to specifically consider the issue of delayed onset hearing loss due to acoustic trauma. An addendum opinion was obtained in June 2018. The clinician considered the Veteran’s report of noise exposure and hearing loss and explained as follows: When comparing enlistment audiologic test results in 1967 with separation test results in 1969, there are no significant changes/decrease in hearing thresholds during active duty and there was no record of complaint or treatment of the claimed condition in service records. Given this, the clinician cited medical research finding that there is not a sufficient basis to conclude that delayed-onset hearing loss occurs when hearing was normal at separation or where there were no permanent threshold changes during military service; there is no sufficient basis on which to conclude that normal hearing upon discharge is causally related to hearing loss that develops later (after active duty). Given this, the clinician gave the opinion that the Veteran’s bilateral hearing loss is less likely than not related to his military service. The Board gives the June 2018 clinician’s opinion great probative weight because it is based on a review of the medical record, cited medical research in support of the claim, and the clinician has the medical expertise to make such a determination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran’s lay opinion that his bilateral hearing loss is related to service. In the instant case, the Board finds that the Veteran is competent to report his current hearing loss. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, the Board finds the question of the potential relationship between the Veteran’s hearing loss and service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a connection between the two. Further, the Board notes that to the extent the Veteran has asserted a continuity of symptomology (which the Board could not locate any such assertions, to include at his hearing before the undersigned VLJ), the probative evidence does not support service connection under that theory. The first report of reduced hearing was in March 2011. Based on the foregoing, the Board finds that service connection is not warranted for bilateral hearing loss. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to an increased rating for service-connected PTSD is remanded. The Veteran asserts that he meets the criteria for a 70 percent rating for service-connected PTSD. In April 2019, the Court remanded the Veteran’s claim for an increased rating for two reasons. First, the Board inappropriately discussed the global assessment of functioning (GAF) scores in the record. Second, that the most recent examination of record, in September 2013, did not provide adequate review of the Veteran’s medical record and did not specifically address the Veteran’s functioning related to PTSD. While the Board regrets the additional delay, the Board finds that a remand is warranted in the Veteran’s case. The Court found that the September 2013 examiner provided an inadequate review of the medical evidence in the file in assessing the level of disability. The Veteran has not had a VA examination since that time. Further, the most recent VA medical records are dated October 2016. Thus, without knowing the Veteran’s current functioning from an examination or his recent medical records, there would be an insufficient evidence to determine the Veteran’s current functioning. Thus, a remand to obtain updated medical records and a new examination is required. 4. Entitlement to a TDIU, to include on an extraschedular basis, is remanded. 5. Entitlement to SMC at the housebound rate is remanded. The Veteran contends that his service-connected disabilities preclude employment. Specifically, he contends that his service-connected PTSD alone warrants TDIU and that even if the Veteran’s PTSD rating stayed at 50 percent, his disability picture would render him factually unemployable. Thus, if such a finding were made, the Veteran would be entitled to SMC at the housebound rate. See Representative’s briefs dated March 25, 2020 and June 9, 2020. Because a decision on the remanded issue of an increased rating for PTSD could significantly impact a decision on these issues, they are inextricably intertwined. A remand of the claims for entitlement to a TDIU and SMC at the housebound rate is remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2016 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine 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. 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 PTSD alone. The examiner should specifically indicate that they have reviewed the evidence of record, to include VA treatment records and the vocational assessment submitted by the Veteran. See document labeled “Third Party Correspondence,” received March 25, 2020, pages 19-30. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If TDIU on a schedular basis is not granted effective November 30, 2010, refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration for any remaining period. The vocational assessment submitted by the Veteran should be reviewed. See document labeled “Third Party Correspondence,” received March 25, 2020, pages 19-30 4. Thereafter, the AOJ should specifically consider whether the Veteran is entitled to SMC at the Housebound rate—if his service-connected PTSD alone renders him factually unable to work. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.