Citation Nr: 1618964 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 14-16 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for myeloma, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: James Fausone, Attorney ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 through July 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for myeloma, to include as secondary to herbicide exposure is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was not present during active service, did not manifest within one year of separation from service, and did not develop as a result of any incident during service. 2. The Veteran's tinnitus was not present during active service, did not manifest within one year of separation from service, and did not develop as a result of any incident during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Proper notice was provided in a September 2011 letter. The Veteran's attorney filed a July 2015 motion for the extension of time before the Board considered the Veteran's claim in order for the Veteran's Freedom of Information Act (FOIA) request for a legible copy of his entrance and separation examinations to be completed. The motion was granted in December 2015. The 90 days have elapsed and the Veteran has received legible copies of the requested documents in March 2016, thus the claim is ready for appellate review. With regard to the duty to assist, the claims file includes service treatment records (STRs) and the statements of the Veteran in support of his claims. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. A VA examination was obtained and is adequate to decide the claim. The report includes a clinical examination, diagnostic testing, and consideration of the Veteran's reported symptoms. The report provides findings relevant to determining whether service connection is warranted and relevant for rating the disability at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. II. Legal Criteria 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 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Tinnitus is also an organic disease of the nervous system. Fountain v. McDonald, 27 Vet. App. 258 (2015). Under 38 C.F.R. § 3.303(b), for those conditions considered to be chronic according to 38 C.F.R. § 3.309(a), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in active service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155 (1993). For the 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, 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. 38 C.F.R. § 3.385. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the 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. III. Bilateral Hearing Loss Disability The Veteran contends that his bilateral hearing loss disability is due to in service noise exposure. For the reasons that follow service connection for a bilateral hearing loss disability is denied. An essential element of a claim for service connection is competent credible evidence of a current disability. On the VA examination in October 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 35 65 95 LEFT 25 30 50 70 80 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. The Veteran met the definition of a hearing loss disability for VA purposes in this examination. 38 C.F.R. § 3.385. However, in order to be entitled to service connection the Veteran's current disability must have been incurred coincident with service. The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's currently diagnosed bilateral hearing loss became manifest or otherwise originated during his period of service, within one year of separation from service, or is otherwise related to his military service. The Veteran provided an August 2011 statement in which he stated he could only "half hear" as a result of working around jet engines for three years. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was listed as aviation fire control technician. Thus, the Board concedes the Veteran was exposed to noise while in service. As a preliminary matter, the Board notes that the audiology testing was generally conducted under the American Standards Association (ASA) standards until November 1, 1967. After that date, the Board ordinarily assumes that any audiometric testing was conducted using current ISO (International Standards Organization) measurements. The Veteran's in service audiology test results have not been labeled as performed under the ASA or ISO standards. As such, the Board has assumed that the tests performed prior to November 1, 1967, were performed pursuant to the ASA standards. The Veteran's September 1967 enlistment examination revealed audiometric results as follows (the ASA results are adjusted to the modern ISO standard, the results of which are listed in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) -5 (5) 0 (10) 15 (20) LEFT 15 (30) 0 (10) 0 (10) 15 (20) Testing at the 3000 hertz level was not conducted. The Veteran's June 1971 separation examination did not include audiometric testing. However, the Veteran's hearing was assessed using the whispered voice (WV) and spoken voice (SV) tests. The Veteran scored 15/15 bilaterally on both tests. Additionally, the Veteran reported that his ears and ear drums were normal. The Veteran was afforded an October 2011 VA examination in connection with his claim for entitlement to service connection for a bilateral hearing loss disability. The Veteran reported that he could not hear the trolling motor well on his boat and sometimes had difficulty hearing his wife's voice. The examiner reviewed the Veteran's claims file and performed a physical examination. As noted above, the audiogram performed during the October 2011 VA examination revealed the Veteran met the definition for a hearing loss disability for VA purposes. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss in the frequency range of 500-4000 and 6000 hertz. The examiner concluded that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner opined "Hearing levels were judged to be within normal limits at the time of military separation. There is no documentation of complaint of hearing loss or tinnitus at the time of military separation. Ear related problems were denied at the time of military separation. There is no evidence of chronicity or continuity of care regarding hearing loss or tinnitus during the four decade since military separation." The Veteran's attorney submitted an October 2012 notice of disagreement, which stated that because an audiogram was not performed at the time of the Veteran's separation from service, the VA examiner could not have concluded that the Veteran's hearing was within normal limits upon separation from service. While audiometric testing was not performed at the Veteran's separation, the VA examiner appeared to base his conclusion that the Veteran's hearing was normal on the lack of in service complaints of hearing loss, the WV and SV tests performed at separation, the Veteran's denial of ear related problems at separation, and the lack of evidence showing a chronicity or continuity of care regarding hearing loss following separation from service. Thus, the Board finds the VA examiner's opinion adequate as the VA examiner considered the entirety of the Veteran's claims file, performed an adequate physical examination, and provided a thorough rationale explaining his conclusion. The only evidence supporting the Veteran's contention that his bilateral hearing loss was the result of in service noise exposure comes from his own lay statements. The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing difficulty hearing). Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To this extent, the Board finds that the Veteran is competent to report that he has difficulty hearing; however, the Board finds that the objective audiometric testing is more probative than the Veteran's lay statements as to the extent of any perceived hearing loss (i.e., when, and whether, he manifested a hearing loss disability (for VA purposes)). The clinical evidence reflects that the Veteran is currently experience hearing loss symptoms; however, there is no competent credible evidence that Veteran had a hearing loss disability for VA purposes during active service or during the one-year presumptive period following separation from service. See 38 C.F.R. §§ 3.307, 3.309. Based on a review of the evidence of record, the preponderance of the evidence is against a finding that the Veteran's current hearing loss is related to his service. As discussed above, the only evidence that supports the claim in this regard are the Veteran's contentions; however these statements are not competent. Thus, they are not probative evidence in support of the Veteran's claim. The October 2011 VA examiner provided a probative nexus opinion, which weighs against the Veteran's claim. Therefore, the Board concludes that the preponderance of the evidence is against the Veteran's claim seeking service connection for a bilateral hearing loss disability. As the preponderance of the evidence is against this issue, the benefit of the doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability is denied. See 38 U.S.C.A §5107. IV. Tinnitus The Veteran contends that he has tinnitus that is related to working around jet engines while in service. The Board has conducted a careful review of the record, and concludes for the reasons that follow; that the preponderance of the evidence is against a finding that the Veteran's tinnitus became manifest or otherwise originated during his period of service, within one year of service, or is otherwise related to his military service. The Veteran was afforded an October 2011 VA examination in connection with his claim for entitlement to service connection for tinnitus. The Veteran reported recurrent tinnitus with the date and circumstances of the onset being unknown. The examiner noted the Veteran's tinnitus was not at least as likely as not caused by or a result of military noise exposure, he explained in the hearing loss portion of the examination that, "[t]here is no documentation of complaint of hearing loss or tinnitus at the time of military separation. Ear related problems were denied at the time of military separation. There is no evidence of chronicity or continuity of care regarding hearing loss or tinnitus during the four decade since military separation." The examiner concluded "The Veteran has a diagnosis of clinical hearing loss, and [the Veteran's] tinnitus is at least a likely as not (50% probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss." Therefore indicating that the Veteran's tinnitus is at least as likely as not secondary to his non-service connected hearing loss, and as such, is not related to military noise exposure. The Veteran's attorney submitted an October 2012 notice of disagreement, which stated that while the Veteran told the VA examiner "he could not remember how long he had had the tinnitus condition" he "didn't say it was caused by something other than service, only that he couldn't pinpoint exactly when the condition started." However, the Board notes the examiner indicated "unknown" for "Date and circumstances of onset of tinnitus." Indicating that the Veteran did not provide a date for the onset of his tinnitus as well as the surrounding circumstances of the onset of his tinnitus. The Veteran did not report that his tinnitus began in service as a result of in service noise exposure. Therefore, the Board finds the October 2011 VA examination probative evidence as the examiner reviewed the Veteran's claims file, performed an in person examination, and provided a thorough rationale for his conclusion. The only evidence supporting the Veteran's contention that his tinnitus is the result of in service noise exposure comes from his own lay statement that "...my ears have ringing in them...due to working around jet engines for three years." The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., ringing in his ears). Jandreau, supra. To this extent, the Board finds that the Veteran is competent to report that he has tinnitus. However, the Board finds that the Veteran's statement that there is a nexus between his tinnitus and noise exposure in service not credible. The Veteran's August 2011 statement indicated that the ringing in his ears was a result of working around jet engines, however, during the October 2011 VA examination the Veteran could not provide the circumstances of the onset of his tinnitus, such as in service noise exposure. Thus, as the Veteran's statements come over 30 years after his separation from service, lack specificity, and are for a pecuniary purpose, the Board finds that they are not credible. Based on a review of the evidence of record, the Board finds that the Veteran does not have tinnitus which is related to service. As noted above, the October 2011 VA examiner provided a probative negative nexus opinion stating that the Veteran's tinnitus was more likely than not a result of his hearing loss, rather than in service noise exposure. Therefore, the Board concludes that the preponderance of the evidence is against the Veteran's claim seeking service connection for tinnitus. As the preponderance of the evidence is against this issue, the benefit of the doubt rule does not apply, and the Veteran's claim of entitlement to service connection for bilateral hearing loss is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. REMAND The Veteran is seeking service connection for myeloma, to include as secondary to herbicide exposure. The Veteran provided a June 2010 statement, which indicated he was on the USS Enterprise and the USS Kitty Hawk, both of which sailed near Vietnam. The Veteran stated in August 2011 that when a plane was disabled in Vietnam, he would be sent ashore to repair the plane so that it was able to return to the ship. In May 2014, the Veteran's representative reiterated that argument and asserted that, despite the fact the Veteran has been found to be a "blue water Navy," he was a "boots-on-ground" veteran by virtue of temporary duty assignments to Vietnam. The representative noted that the absence of written orders makes the temporary duty verification somewhat difficult, but requested that additional steps to taken to assist the Veteran. Specifically, that from the histories already reviewed it be confirmed if any of the actual planes from the identified multitude of missions were otherwise crippled as a result of those missions. If found to be factual that some planes were in fact disabled what happened to those planes how did they came to be repaired and by whom. The representative contends that these findings will support the plausibility of the Veteran's being within the borders of Vietnam. On remand, efforts should be made to attempt to determine whether, given the nature of his duties, the Veteran was ever on temporary duty to Vietnam. The representative noted that he would be submitting lay testimony from the Veteran detailing those arguments as well as lay testimony from the Veteran's Chief Petty Officer (ret ) G. H. "shortly." It does not appear that those statements have been submitted. On remand, the Veteran and his representative should be given the opportunity to submit any additional evidence. In October 2009 Joint Services Records Research Center (JSRRC) responded to an RO request for information and reported that the Veteran's unit was credited with Vietnam service in March through June 1969, December 1970, and January 1971 through July 1971. The RO requested records from the Modern Military Branch National Archives for the USS Enterprise CVAN 65 covering March 31, 1969 to June 16, 1969. A March 2011 VA memo noted that "Response from Modern Military Branch did not provide proof of in country service for veteran but stated we can contact the Naval Aviation Branch US Navy History and Heritage Command as they have information on operational activities of navy squadrons." Accordingly, in March 2011 the RO requested the US Navy History and Heritage Command research the unit history of Recon Attack Squadron Six assigned to the USS Enterprise from March 31, 1969 to June 16, 1969. The US Navy History and Heritage Command responded in an April 2011 letter explaining that deck logs are not kept for an extended period of time and provided a detailed narrative history of Recon Attack Squadron Six for the entirety of 1969. The Veteran's provided statements indicated that he served on both the USS Enterprise and USS Kitty Hawk and the October 2009 JSSR response indicated the Veteran's unit was credited with Vietnam service in December 1970, January 1971 through July 1971 as well as the requested time period of March through June 1969. However, the RO only requested records for the USS Enterprise from March 31, 1969 to June 16, 1969. The Veteran's credited service in December 1970 and January 1971 through July 1971 and the Veteran's service aboard the USS Kitty Hawk was not researched. Accordingly, further development to determine if the Veteran was in Vietnam and subsequently exposed to herbicides is necessary. Accordingly, the case is REMANDED for the following action: 1. Give the Veteran and his representative the opportunity to submit any evidence in support of the claim the Veteran was "boots-on-ground," including lay testimony from the Veteran and his Chief Petty Officer (ret ) G. H. 2. Take all appropriate action to attempt to verify the Veteran's statements that he went ashore in Vietnam. Specifically, request verification for the period of December 1970 and January 1971 through July 1971 while aboard the USS Enterprise and USS Kitty Hawk. This should include attempting to confirm if any of the planes from the identified missions during the Veteran's service near Vietnam were otherwise crippled as a result of those missions, and if so, what happened to those planes how did they came to be repaired and by whom. Any official response should be documented. 3. Arrange for any further development indicated by the development ordered above. 4. Then review the record and readjudicate the claim on appeal. If any remains denied, in whole or in part, issue an appropriate supplemental statement of the case and allow the Veteran and his attorney the opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs