Citation Nr: 1315591 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-16 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for left knee disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to May 1983. This matter comes to the Board of Veterans' Appeals (Board) from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2011; the transcript is of record. Thereafter, in August 2012 the Board remanded the claims for additional development and to address due process concerns. The claim for entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, a bilateral ear hearing loss disability is related to in-service noise exposure. 2. Competent and credible evidence indicates the Veteran experienced tinnitus in service and there is competent medical evidence linking tinnitus to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor a bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Requirements In light of the favorable disposition of the claims herein decided, the Board finds that a discussion as to whether VA duties pursuant to the Veterans Claims Assistance Act of 2000 have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of recurrence of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, including an organic disease of the nervous system and sensorineural hearing loss disability, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Bilateral Hearing Loss Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz ). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2012). The Veteran contends that he developed bilateral hearing loss as a result of acoustic trauma during the performance of his duties as an aircraft mechanic in service. Specifically, he claims exposure to excessive noise from jet engine without hearing protection. The Veteran is competent to describe symptoms of hearing loss, which he can perceive, but hearing loss for the purpose of VA disability compensation is not a condition capable of lay observation because it relies upon audiometric testing. Savage v. Gober, 10 Vet. App. 488 (1997). On VA examination in November 2012 audiological testing revealed puretone thresholds in decibels for the right ear at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 30, 35, 30, 40, and 45, and in the left ear were 35, 30, 30, 45, and 55. Speech discrimination was 84 percent in the right ear and 88 percent in the left ear. In this case, the medical evidence shows that the Veteran has bilateral hearing impairment as defined by VA regulation. 38 C.F.R. § 3.385. Having determined that the Veteran currently has a diagnosis of bilateral hearing loss for VA disability purposes, the remaining question before the Board is whether there is nexus between the currently diagnosed hearing loss and his service. The Board initially observes that the Veteran's DD Form 214 identifies his military occupational specialty as a system organizational maintenance technician. His military education included aviation fundamental school, plane captain course, and aircraft corrosion control and painting course. He has competently reported being exposed to loud noise from jet engine during service. The Board finds that the Veteran's competent lay account of having been exposed to military noise is consistent with the circumstances of his service and it is deemed credible. As such, exposure to extreme noise levels during service is conceded. The service treatment contain audiometric testing reports dated in November 1975, December 1979, and on separation from service in March 1983, which show that the Veteran's hearing was reported as normal. In a Report of Medical History in March 1983 the Veteran endorsed a history of ear, nose or throat trouble. Additionally, on separation from service examination of the Veteran's ears was normal. Accordingly, the service treatment records are negative of any complaints and/or treatment for hearing loss and his in-service audiograms, including the March 1983 separation examination, do not show hearing loss pursuant to 38 C.F.R. § 3.385. After service, records from City Human Resources, show that the Veteran's hearing was periodically tested by his former employer from September 1993 to April 2005. Recorded puretone thresholds in decibels for the right ear at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in September 1993 were 10, 5, 0, 5, and 25, and in the left ear were 10, 5, 5, 15, and 30; in March 1999 they were 5, 5,0, 5, and 25, and in the left ear were 5, 5, 55, 30, and 25; in May 2001 they were 5, 0, 5, 20, and 30 in the right ear, and 0, 5, 5, 20 and 40, in the left ear; and in April 2005 they were 10, 5, 5, 30, and 40 in the right ear, and 0, 5, 5, 35, and 45. The reports contain no complaints of hearing loss, however, audiological testing results recorded in May 2001 showed that the auditory threshold at the tested frequency of 4000 Hertz was 40 decibels in the left ear. Similarly, in April 2005, the auditory threshold at the tested frequency of 4000 Hertz was 40 decibels in the right ear. As for service connection based on the initial diagnosis of bilateral hearing loss after service, where the determinative issue involves a question of a medical nexus or medical causation, a lay assertion of medical causation is not competent evidence. Competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical opinion. 38 C.F.R. § 3.159 (2012). The Veteran, as a lay person, is not competent to report that his bilateral hearing loss, first shown after service, is related to service, including excessive noise exposure therein. When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here there is evidence both for and against the claim. In support of his claim, the Veteran submitted a statements from a from a private physician, Dr. J.H.H., who in September 2011, noted having reviewed the Veteran's records dating to his military service, the City Human Resources records, and VA treatment records, and opined that the Veteran's noise-induced hearing loss was more likely than not related to his service. Additionally, on VA otolaryngology evaluation in January 2013, an ear, nose, and throat (ENT) physician indicated that he had reviewed the November 2012 VA examination report and strongly disagreed with the VA examiner's findings. The VA physician opined that given the Veteran's military occupational specialty as a jet mechanic exposed to engine noise on the flight deck, there was a clear cut nexus between his military noise exposure and his hearing loss, regardless of the audiogram on separation from service. The evidence against the claim consists of the medical opinions of the VA examiners who in June 2009 and November 2012, opined that it was less likely than not that the Veteran's hearing loss was related to service. In this regard in June 2009, the examiner noted that the Veteran had gradual onset and progression of hearing loss beginning in or about 1991. The Veteran reported military noise exposure from jet engine on a daily basis. After service, the Veteran related periodic exposure to explosions on weekend drills and annual camp trainings in the California National Guard. The examiner opined that the Veteran's hearing loss was less likely than not caused by or a result of noise exposure in service. The examiner noted that all three in-service audiograms, including the separation audiogram report, revealed normal pure tone thresholds while serving active duty. Thus, it appeared that he developed hearing loss after military service. The examiner noted that the Veteran reported an awareness of hearing loss in the early 1990's, several years following the conclusion of military service. However, at the Board hearing, the Veteran testified that he told the VA examiner that his hearing problems had onset in the 1980's, but the examiner erroneously noted 1990's in the examination report. Accordingly, the opinion was based on an inaccurate factual premise. On VA examination in November 2012, the examiner noted a history of noise exposure in service, as well as occupationally as a police officer for 24 years. The examiner diagnosed bilateral sensorineural hearing loss and determined that the condition was less likely than not caused by or the result of military service. The examiner explained that the service treatment records, including the separation examination report, contained audiological testing results that were within normal limits, bilaterally. Hearing was also within normal limits 10 years after service discharge. Thereafter there was a steady decline in the frequencies commonly impacted by noise exposure, as evidenced by testing performed while the Veteran was a police officer, which showed shifts of 15 decibels or greater at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz, bilaterally, between the first evaluation in 1993 and the last evaluation in 2005. The examiner agreed with the opinion rendered by the VA examiner in June 2009 and concluded that the Veteran's hearing loss developed after military service. In this case, the Board finds that all medical opinions of record were submitted by competent medical professionals who either had access to the claims file and medical records or, in the case of the VA ENT physician in January 2013, was aware of the Veteran's medical history and sufficiently informed to make a judgment on the etiology of his hearing loss. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that a medical opinion may not be discounted solely because the examiner did not review the claims file). Given the Veteran's competent credible testimony of decreased hearing acuity since service and documented in-service noise exposure, and as the competent but contrary opinions which directly address the etiology question are entitled to, essentially, equal probative weight, the Board finds that the evidence for and against the claim is relatively evenly balanced, or, in other words, in relative equipoise. Hence, the benefit of the doubt in resolving the issue shall be given to the claimant and entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Tinnitus The Veteran contends that he developed tinnitus as a result of acoustic trauma incurred in service, or in the alternative, he asserts that his tinnitus developed due to in-service head trauma. The evidence shows current tinnitus. Specifically, the Veteran reported on VA examinations that he had recurrent tinnitus. The audiologists appeared to have found the Veteran's account of current tinnitus credible. Moreover, the Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of current tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the presence of current tinnitus is established. Additionally, the Board finds that the Veteran's competent lay account of having been exposed to military noise is consistent with the circumstances of his service, and is, therefore, deemed credible. The service treatment records show that in September 1981 the Veteran was treated for an injury to the face incurred when he was assaulted with a tire iron while stationed in Spain. The evidence of record does not show any complaints, diagnoses, or treatment for tinnitus in service. After service, a private and VA treatment records noted complaints of ringing in the ears. A private treatment note in June 2010 recorded complaints of decreased hearing and constant tinnitus, worse in the left ear. The clinician noted that examination findings were consistent with a sensory site of lesion. A November 2010 clinical treatment report noted the Veteran's complaints of increased tinnitus which coincided with an increase in ibuprofen use associated with a recent hip replacement procedure. Following an examination of the Veteran in June 2009, a VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of noise exposure in service. The examiner noted that the Veteran reported an awareness of tinnitus in the early 1990's, several years following the conclusion of military service. However, at the Board hearing, the Veteran testified that he told the VA examiner that his tinnitus began in 1981, but the examiner erroneously noted 1991 in the examination report. Additionally, there is medical evidence to support the claim. In a September 2011 medical opinion report Dr. J.H.H. opined that the Veteran's tinnitus was more likely than not related to his service, and stated that he was certain that service connection should be granted for tinnitus. Similarly, on VA otolaryngology evaluation report in January 2013, a clinician opined that given the Veteran's military occupational specialty as a jet mechanic exposed to engine noise on the flight deck, there was a clear cut nexus between his military noise exposure and his tinnitus. Significantly, the VA examiner in November 2012, following a review of the Veteran's claims file, to include post-service treatment records that document occupational noise exposure and hearing problems after service, attributed the Veteran's tinnitus to head trauma in service. Specifically, the examiner found that tinnitus was less likely than not caused by military noise exposure because of the Veteran's report that it had onset after the in-service head trauma. Although the examiner also indicated that she was unable to provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation, her opinion unequivocally associates the onset of tinnitus to the documented in-service head trauma. The opinion was rendered after a review of the claims file and an examination of the Veteran. The report reflects that the examiner considered the Veteran's documented in-service head trauma in 1981, and his exposure to excessive noise in service and occupationally, and found the Veteran's report of onset of recurrent tinnitus following head trauma in service to be credible. As service connection may be granted for any disease first diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes a link to service, and as the competent evidence of record is at least in equipoise as to whether the Veteran's tinnitus had onset in service, the Board finds that service connection for tinnitus is warranted. 38 C.F.R. § 3.303(d). After review of the record, the Board finds that competent and credible evidence indicates the Veteran experienced tinnitus in service that has continued, and the competent medical evidence supports the conclusion that the Veteran's current tinnitus had its onset in service. After resolving all doubt in the Veteran's favor, the Board finds that the balance of positive and negative evidence is in relative equipoise, and service connection for tinnitus is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND Although the Board regrets the additional delay, further development is needed prior to the disposition of the Veteran's claim for service connection for a left knee disability. The Veteran asserts that his left knee disability is directly due to service, and/or that his left knee disability is due to or aggravated by his right knee disability. In August 2012 the Board determined that a claim for service connection for a right knee disability and a back disorder were raised by the record, and referred the claims to the agency of original jurisdiction (AOJ) for appropriate action. Additionally, as the Veteran had asserted that his left knee disability could be due to or aggravated by his right knee disability, the Board found that the claim for service connection for the left knee disability on a secondary basis was inextricably intertwined with the claim for service connection for right knee disability. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As such, the Board instructed the AOJ to ensure adjudication of the claim of service connection for a right knee disability prior to readjducation of the claim of service connection for a left knee disability. The AOJ was also instructed to ensure that proper VCAA notice was issued to the Veteran with regard to any information and evidence needed to substantiate and complete a claim pursuant to 38 C.F.R. § 3.310. A review of the Veteran's virtual VA claims folder shows that in a recent rating decision noted in April 2013 the RO deferred litigation of the claims of service connection for a right knee disability and a lower back condition pending additional development, to include obtaining VA examinations. There is no indication that a rating decision has been issued addressing the Veteran's claims for service connection for a right knee condition and a back disability. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The claim of entitlement to service connection for a left knee disability remains inextricably intertwined with the issue of whether the Veteran is entitled to service connection for his right knee disability and is again deferred pending resolution of the Veteran's claim for service connection for a right knee disability. Furthermore, the Board observes that during the pendency of the appeal, a VA examiner in October 2012 while addressing the etiology of the left knee disability, noted that the service treatment records documented at least mild scoliosis and spina bifida, and it was well documented in the medical literature that scoliosis and spina bifida frequently contributed to an altered gait. Accordingly, the examiner's opinion suggests a nexus between the Veteran's back disability, documented in service, and the claimed left knee disability, on a secondary basis. In light of the foregoing medical opinion, the Board notes that, because the outcome of the claim of service connection for a low back condition may have a bearing on the issue of entitlement to service connection for a left knee disability on a secondary basis, the claims are also inextricably intertwined. As such, the AOJ should ensure adjudication of the claim of service connection for a back disability prior to readjducation of the claim of service connection for a left knee disability. Although the examiner's opinion suggests a nexus between the Veteran's back disability and the claimed left knee disability on a secondary basis, it is not entirely clear just how the Veteran's left knee disability is caused or aggravated by or the back condition. While further consideration of this is not required unless the Veteran is granted service connection for his a back condition, to avoid a future remand, the Board finds that an addendum opinion must be obtained with respect to the issue of etiology. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, relevant ongoing medical records should also be obtained, to include any VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, in an August 2012 statement the Veteran asserted that he had submitted all records in his possession pertaining to the claims on appeal, and inquired as to whether VA had lost his records. As it is unclear whether additional records may be outstanding, on remand all necessary action should be taken to ensure that all pertinent treatment records have been associated with the claims file, to include requesting that the Veteran provide any outstanding private medical records or authorize VA to obtain the records. Accordingly, the case is REMANDED for the following action: 1. Ensure that proper notice is issued to the Veteran which complies with all notice and assistance requirements set forth in the VCAA and its implementing regulations, to include advising the Veteran of the evidence necessary to substantiate his claim of service connection for left knee disability under the provisions of 38 C.F.R. § 3.310, as well as what evidence he is to provide and what evidence VA will attempt to obtain in accordance with Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Obtain, either electronically or physically, all relevant treatment records for treatment received at the VAMC, not already in the claims file. All attempts to obtain these records must be documented in the claims file. 3. Request the Veteran to identify any sources of private treatment or evaluation relevant to the claims on appeal. Then, undertake appropriate efforts to attempt to obtain any indicated records. Additionally, in light of the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile. All development efforts should be associated with the claims file. 4. Return the claims file to the VA examiner who conducted the October 2012 VA examination, if available, to obtain an addendum opinion report. The examiner is asked to provide additional comments with respect to his opinion regarding the etiology of the Veteran's left knee disability. The examiner's report must specifically reflect that the entire claims folder was reviewed. A detailed analysis must be provided and the examiner is asked to specifically address the following: a) If service connection is granted for a back or right knee condition, is it is at least as likely as not that the Veteran's left knee disability was caused by a back disability and/or a right knee disability? b) If service connection is granted for a back or right knee condition, is it at least as likely as not that that a left knee disability was aggravated (increased in severity beyond the natural progress of the condition) by a back disability and/or a right knee disability? c) Is it at least as likely as not that a left knee disability began in or is related to active service. If the examiner who performed the October 2012 VA examination report is no longer available or feels that another examination is necessary in order to provide the requested opinion, then an examination should be scheduled. 5. After completion of the above, the AOJ should review the expanded record and readjudicate entitlement to service connection for a left knee disability, to include pursuant to § 3.310, upon ensuring that entitlement to service connection for right knee disability and back condition have been adjudicated. If any of the benefits sought are not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs