11-26 620
11-26 620
Board of Vet. App.Apr 28, 2017Background
- Veteran served on active duty Mar 1973–Feb 1977 and appealed VA RO decisions denying service connection for bipolar disorder, bilateral hearing loss, and tinnitus.
- RO decision on appeal dated Aug 2010; Travel Board hearing held Jun 2015; Board remanded in Aug 2015 and again in Apr 2017.
- Records show Veteran has received Social Security disability benefits (onset alleged 1999) and reported SSA benefits for bipolar disorder; VA file lacks associated SSA records.
- VA treatment occurred at multiple VA facilities; file lacks Battle Creek VAMC records from Jan 2011 to present despite evidence Veteran received primary care there.
- Service and in-service audiograms (entrance 1973; in-service 1974, 1975; separation 1977) show significant threshold shifts, particularly a longstanding pre-existing left-ear loss and apparent in-service changes; a March 2016 VA exam diagnosed bilateral hearing loss but gave insufficient nexus rationale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — bipolar disorder | Veteran seeks service connection; SSA disability and VA treatment support current disability stemming from service-era events | RO denied; record lacks sufficient evidence linking condition to service | Remanded for additional development (obtain SSA records and outstanding VA records) before adjudication |
| Service connection — bilateral hearing loss | Veteran asserts current bilateral hearing loss is related to in-service threshold shifts and noise exposure | RO relies on March 2016 examiner opinion finding no nexus based on ‘‘normal’’ entrance/separation audiograms | Remanded for addendum VA opinion addressing July 1974/1975 audiograms, threshold shifts, delayed onset theory, and whether pre-existing left-ear loss worsened in service; further development required |
| Service connection — tinnitus | Veteran asserts tinnitus secondary to in-service noise/hearing loss | RO denied for lack of nexus/evidence | Remanded for development (same records requests) prior to merits decision |
Key Cases Cited
- Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir.) (VA must seek relevant SSA records when they may assist claim under 38 U.S.C. § 5103A)
- Murincsak v. Derwinski, 2 Vet. App. 363 (Vet. App.) (VA duty to assist includes requesting records from other federal departments)
- Bell v. Derwinski, 2 Vet. App. 611 (Vet. App.) (VA constructive possession of VA treatment records generated up to decision date)
- Hensley v. Brown, 5 Vet. App. 155 (Vet. App.) (hearing loss service connection can be based on in-service threshold shifts even if not meeting separation regulatory criteria)
- Ledford v. Derwinski, 3 Vet. App. 87 (Vet. App.) (standards for establishing nexus for hearing loss claims)
- Stegall v. West, 11 Vet. App. 268 (Vet. App.) (remand directives must be followed by AOJ)
- Kutscherousky v. West, 12 Vet. App. 369 (Vet. App.) (appellant may submit additional evidence after remand)