Citation Nr: 1318311	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  09-37 558	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for the residuals of a back injury.  

2. Entitlement to service connection for a right knee disability.  

3. Entitlement to service connection for a left knee disability.  

4. Entitlement to service connection for bilateral hearing loss.  

5. Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active duty from November 1978 to December 1994.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  All claims for service connection were denied in this decision.  

In April and December 2012, this case was remanded so the Veteran could be afforded a hearing.  In March 2013, the Veteran testified before the undersigned at a Board Videoconference hearing.  A copy of the transcript has been reviewed and is associated with the file.  

The claims for service connection for the residuals of a back injury and for a right and left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDINGS OF FACT

1.  The Veteran has current bilateral hearing loss as a result of in service noise exposure.  

2.  The Veteran has current tinnitus as a result of in service noise exposure.  


CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385, 3.304 (2012).  

2. The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA 

In this decision, the Board grants entitlement to service connection for bilateral hearing loss and tinnitus.  As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 West 2002 & Supp. 2013), is necessary.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).  

Establishing service connection generally requires evidence of (1) a current disability; (2) lay evidence of 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.  

If a chronic disease is shown to a compensable degree within one year of service, service connection will be presumed.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  If a chronic disease is shown in service and at any time thereafter, service connection will also be conceded.  38 C.F.R. § 3.303(b).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a).  However, in Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit held that § 3.303(b) applies only to listed chronic diseases.  In Walker, the Federal Circuit specifically held that § 3.303(b) did not apply to a claim based on age related hearing loss.

VA has; however, taken an informal position that sensoneural hearing loss is an organic disease of the central nervous system, and as such, is a chronic disease.  Hearing Loss, Under Secretary for Health (Oct. 4, 1995); see 38 U.S.C.A. § 1101(3) (West 2002).  The Veteran's hearing loss has been diagnosed as "neurosensory," by Dr. E.P.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  See, 38 U.S.C.A. § 5107(b) (West 2002).  It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent with the facts shown in every case.  38 C.F.R. § 3.102 (2013).  

In adjudicating this claim, the Board must assess the competence and credibility of the Veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Court of Appeals for Veterans Claims (Court) has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation.  See Charles v. Principi, 16 Vet. App. 370, 374-375 (2002).  Under 38 C.F.R. § 3.159(a)(2) (2013), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  Id.  

In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits.  Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) 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, (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."  Jandreau, 492 F.3d at 1377.  

The Board must also assess the credibility, and probative value of the evidence of record in its whole.  Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997).  In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza, 7 Vet. App. 498.  

For purposes of applying the laws 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz 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 (2013).  

The Board finds that service connection for bilateral hearing loss and tinnitus is warranted here, as the evidence is in equipoise.  This determination is based on the competent and credible statements of the Veteran and the medical opinion evidence in the file.  

The Veteran testified at the March 2013 Board hearing that in service he was an aviation special mechanic; and worked around jet engines (Transcript, p 10).  He had hearing protection in service but he also complained at least twice about his hearing (Transcript, p 11).  He first went to a doctor about his hearing in 2008 (Transcript, p 12).  He felt he might not have a current disability, but stated he was worried about the future (Transcript, p 13).  He had no experienced no ear infections since going to an ear, nose and throat (ENT) doctor (Transcript, p 17).  He was unsure when he had been diagnosed as having tinnitus (Transcript, p 14); but had ringing in his ears in the military and was treated by a private audiologist.  Id.  He believed being exposed to loud engines caused tinnitus; and ringing had been continuous since service (Transcript, pp 15-16).  

Service treatment records show that upon enlistment in September 1978, the report of medical examination (RME) showed that his ears and ear drums were normal.  

Audiogram results in decibels were as follows:



HERTZ

500
1000
2000
3000
4000
RIGHT
15
5
0
NA
25
LEFT
15
5
5
NA
15

He was given a "2" under the "E"(for ears) in PULHES on the RME, but there were no complaints on report of medical history (RMH).  

Around May 1982, a service treatment record showed the Veteran complained of his right ear being stopped up.  The assessment was serous otitis.  An August 1982 audiogram showed mostly improved hearing, although by July 1983 the right ear reading at 3000 Hertz was 30.  As he stated at the hearing, he wrote on an October 1984 medical surveillance questionnaire that he was issued earplugs when exposed to noise in his jobs.  

An October 1984 RME and July 1985 service treatment record showed further ear problems, but it wasn't until 1988 that records started to note recurrent otitis externa and sometimes otitis media (see April, August, and October records).  In November 1989, the RMH and RME show the Veteran complained of ENT trouble.  

Audiogram results were:
  


HERTZ

500
1000
2000
3000
4000
RIGHT
10
5
5
25
35
LEFT
10
10
0
5
20

It was noted he had otitis externa, but it was not considered disabling.  

Many records throughout 1989 and 1990 show treatment for recurrent otitis externa.  In January 1990, he also complained of tinnitus.  Finally, in mid-June 1990, there the Veteran stated that his symptoms were resolving and he no longer had tinnitus.  But September and December records still showed persistent recurrent otitis externa.  In January 1991, it was determined he had otomychosis.  

The Veteran's separation examination took place in July 1994.  It was noted that he had minimal high frequency hearing loss which was not considered disabling.  

Audiometer results were:  



HERTZ

500
1000
2000
3000
4000
RIGHT
5
5
5
30
35
LEFT
5
5
0
15
30

On the RMH, he denied ENT trouble or hearing loss.  This record does not address ringing in the ears.  However, a November 1994 service record showed treatment for a right ear infection which was possibly otitis.  

The Veteran's many RMEs note his occupational specialty was "AMS" or aviation special mechanic.  

Post-service records show the Veteran was given an audiogram in June 2008 by a private clinician.  Results were charted and are recorded below:  



HERTZ

500
1000
2000
3000
4000
RIGHT
5
0
25
45
45
LEFT
0
5
10
45
35

This record also states, "Tinnitus auruim secondary to neurosensory hearing loss."  

Another record from the same month shows Dr. E.P. wrote that the Veteran was referred because of complaints of hearing loss and tinnitus from his time in service.  There was a significant history of being exposed to loud noises while in service.  The impression was neurosensory hearing loss with tinnitus aurium.  

In June 2008, a letter from Dr. E.P. stated that in all medical probability noise exposure in the military contributed to the Veteran's current bilateral hearing loss and tinnitus.  

Occupationally, the Veteran reported military noise exposure only in service.  He also worked as an instructor at a high school after service (see June 2006 and 2002 chiropractor records).  


Analysis

A current hearing loss disability has been established based on the June 2008 audiogram.  The audiogram shows the Veteran had hearing loss for VA purposes under § 3.385 and that there is lay evidence of in-service incurrence of acoustic trauma established by the Veteran's lay testimony and service records.  38 U.S.C.A. § 1154(a); Shedden, 381 F.3d at 1167.  The treatment records and the Veteran's testimony also establish current tinnitus.

While the June 2008 letter from Dr. E.P. is directly on point and shows a nexus to service, it provides no rationale.  The Board assigns this evidence some weight, especially when considered with evidence that the Veteran had no significant noise exposure outside of service.  Id.  

The Veteran stated he had acoustic trauma in service and the Board finds him to be competent to state that he experienced hearing loss and ringing in his ears while in service.  See Jandreau, 492 F.3d at 1377.  This statement is bolstered by the service treatment records and is consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a).

The Board finds the Veteran's reports to be credible and consistent with service records showing the circumstances of his service working with engines and the many records establishing ear trouble and high frequency hearing loss at his separation examination.  As a result, the Veteran's assertions are assigned high probative value.  

The Board finds that the benefit of the doubt rule is for application here.  Resolving doubt in the Veteran's favor, bilateral sensorineural hearing loss and tinnitus had their onset in service and service connection is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  



ORDER

Entitlement to service connection for bilateral hearing loss is granted.  

Entitlement to service connection for tinnitus is granted.  



REMAND

At the March 2013 Board hearing, the Veteran stated that Dr. Mosch had been treating him ever since he got out of the military (Transcript, pp 5-7).  VA shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to VA and authorizes VA to obtain.  38 U.S.C.A. § 5103A(b)(1) (West Supp. 2013); 38 C.F.R. § 3.159(c) (2013).  

VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West Supp. 2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon, 20 Vet. App. at 83 (2006); see also Walker, 708 F.3d 1331.  The threshold for finding a link between current disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.

The Veteran has reported that he was treated for a back injury in service (Transcript, pp 3-4) and service treatment records show he was treated for chondromalacia of the bilateral knees several times, including in October 1988.  An October 2009 MRI of the spine shows multilevel disc protrusions and degenerative disc disease of the lumbar spine.  A July 2004 MRI of the left knee shows current left knee findings and a February 2002 O.F.M.C. record shows bilateral knee complaints.  This evidence crosses the low threshold for providing an examination.  An examination is needed so that a medical professional can review the record and determine whether any current lumbar spine and bilateral knee disabilities are related to service.  

Accordingly, the case is REMANDED for the following action: 

1. Ask the Veteran to identify all health care providers who have treated him since service for his claimed disabilities; and to provide authorization for VA to obtain records of any private treatment, including records from Dr. M.  

Efforts to obtain records not in Federal custody must ordinarily include at least two requests for the records.  

If any requested records cannot be obtained, the Veteran should be informed and told of the efforts made to obtain the records and of any further action that will be taken with regard to his claim.  The Veteran may submit medical records directly to VA.  

2. After the above development has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of any current back or bilateral knee disability.  The examiner should review the claims folder and state in the report that it has been reviewed.  

The examiner is advised that the Veteran is competent to report his symptoms, his treatment, and diagnoses that were related to him by medical professionals.  If the examiner rejects the Veteran's reports, the examiner should provide reasons for doing so.  The examiner should provide reasons for all opinions that take into account the Veteran's reports.  


For the claim for service connection for a back disability, the examiner should reference: 
* A September 1990 emergency room record showing the Veteran's involvement in a bicycle accident, and an assessment/diagnosis of a "normal examination"; 
* A July 1994 separation RME showing the spine was clinically normal and RMH showing he denied recurrent back pain; 
* A June 2002 and June 2006 chiropractor records which showed he complained of low back pain for about one year; 
* A December 2006 chiropractor record showing low back or sciatic pain from getting out of a truck; 
* An October 2009 MRI of the spine showing multilevel disc protrusions and degenerative disc disease; 
* An October 2009 Dr. D.M. record showing the Veteran complained of low back pain that radiated to the knee after gardening two weeks prior; "somatic dysfunction"; and an assessment of lumbar sprain; and 
* The March 2013 Board hearing transcript where the Veteran asserted the clinician forgot to note back problems after his bike accident in September 1990.  

For the claim for service connection for a right knee disability, the examiner should reference: 
* June 1980 service treatment records which noted bilateral knee pain for one month with no outward symptoms and an assessment of questionable chondromalacia; 
* A May 1982 service treatment record showing knee pain for one year and an assessment of chondromalacia; 
* A July 1983 RMH showing the Veteran complained of a trick or locked knee; it was determined to be chondromalacia which was not considered disabling; 
* An October 1988 service treatment record showing chronic chondromalacia patella of knees; 
* The September 1990 ER record showing right leg pain; 
* A July 1994 separation RME and RMH showing the lower extremities were clinically normal and the Veteran denied a trick or locked knee; 
* A February 2002 OFMC record where the Veteran complained of knee pain, an x-ray showed the bilateral knees were within normal limits, and effusion of the left knee only found; and 
* The March 2013 Board hearing testimony of the Veteran stating he had constant bilateral knee pain (Transcript, p 8).  

For the claim for service connection for a left knee disability, the examiner should reference the above records listed for the right knee and 
* July to October 2004 records showing private orthopedic surgeons records for the left knee after the Veteran fell while bowling with the accompanying MRI showing tears/sprains of the left anterior cruciate ligament and medial collateral ligament.  

3. If the decision remains in any way adverse to the Veteran, issue a supplemental statement of the case (SSOC).  The case should then be returned to the Board, if otherwise in order.  

The appellant has the right to submit additional evidence and argument on the 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 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).  



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs