Citation Nr: 1724924 Decision Date: 06/29/17 Archive Date: 07/10/17 DOCKET NO. 09-18 898A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a right ear disorder other than hearing loss and tinnitus, including otitis media, otitis externa, and a perforated tympanic membrane. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Rasool, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1982 to December 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. An August 2016 Board decision denied service connection for right ear hearing loss, and remanded an issue phrased as "entitlement to service connection for a right ear disorder, including otitis media, otitis externa, tinnitus, and a perforated tympanic membrane" for further development. Following review of the claims folder, the Board rephrases the issues to separate the tinnitus disability. FINDINGS OF FACT 1. The Veteran's tinnitus first manifested in service. 2. The Veteran does not manifest any current right ear disability other than hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 1132, 1137, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2016). 2. The criteria for entitlement to service connection for a right ear disorder other than hearing loss and tinnitus, including otitis media, otitis externa, and a perforated tympanic membrane, have not been met. 38 U.S.C.A. §§ 1131, 1132, 1137, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal originated with the Veteran seeking service connection for "right ear hearing loss and right ear condition secondary to injury." See VA Form 21-4138 received February 2008. His service treatment records (STRs) disclosed right ear injury with evaluation for right ear hearing loss, right ear otitis externa, right ear otitis media and rule out perforation. The Veteran also reported ear ringing. Thus, his claim was rephrased as service connection for right ear hearing loss and service connection for a right ear disorder, including otitis media, otitis externa, tinnitus, and a perforated tympanic membrane. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a claim must be understood from the viewpoint of a lay claimant who may not be required to understand sophisticated legal or medical distinctions, and that "the claimant's intent in filing a claim is paramount to construing its breadth.") As noted in the INTRODUCTION, an August 2016 Board decision denied service connection for right ear hearing loss, and remanded an issue phrased as "entitlement to service connection for a right ear disorder, including otitis media, otitis externa, tinnitus, and a perforated tympanic membrane" for further development. The Board now rephrases the issues as entitlement to service connection for tinnitus and entitlement to service connection for a right ear disorder other than hearing loss and tinnitus, including otitis media, otitis externa, and a perforated tympanic membrane for adjudication purposes. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active peacetime service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process - or relatively close thereto - can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection for certain chronic disorders, including organic diseases of the nervous system, may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an "organic disease of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Fountain v. McDonald, 27 Vet. App. 258 (2015). For an enumerated "chronic disease" such as tinnitus shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994). In adopting the current rating criteria for tinnitus under Diagnostic Code 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or "true" tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or "pseudo-tinnitus"), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033 -01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Whenever 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 Veteran. 38 U.S.C.A. § 5107(b). The facts of this case may be briefly summarized. The Veteran did not report tinnitus upon entry into service. However, right ear hearing loss was shown to be preexisting. The Veteran reports injury to his right ear while practicing a live fire maneuver using machine guns, and that later that evening blood droplets came from the right ear. His STRs corroborate his statements. In February 1983, he sought treatment for a right ear infection, reporting that his right ear had been bleeding for two days. In March 1983, the Veteran reported severe right ear hearing loss. The treatment provider noted the Veteran had been treated for suppurative otitis media, now resolved. The provisional diagnosis was rule out perforation. Later that month he had green discharge from his right ear. In April 1983, a hearing test showed worsening right ear pure tone thresholds. That month the Veteran also reported recently being in the field firing artillery with ear pain and ringing. In May 1983, he underwent another hearing test. A June 1983 treatment note indicated that his eardrums were clear, although his right ear canal was sore. His November 1983 separation examination included a hearing test but no other findings were reported. The STRs also contain undated treatment notes discussing slight to mild conduction loss in the right ear and left ear hearing within normal limits. Another undated treatment note indicates decreased hearing in the right ear for as long as the Veteran can remember, and an assessment of mild conductive hearing loss in the right ear. In connection with the appeal, the Veteran underwent VA examination in June 2008 wherein he reported noticing hearing loss after an incident of shooting weapons in service. He also reported the onset of tinnitus when his hearing loss began. The examiner found that right ear hearing loss was conductive in nature, and that the tinnitus was less likely as not due to military noise exposure on the basis that tinnitus was "more likely" of the same etiology of hearing loss. No other right ear disorders were found on examination. In an addendum dated December 2016, the examiner reiterated that the Veteran had preexisting right ear conducting hearing loss which had nothing to do with military service. The examiner further stated: Since the conductive pathology was present at enlistment and is pre-existing, then we can assume that the Veteran had tinnitus as well even if it was documented at time of service. iom.com reports that tinnitus may also develop in response to factors other than noise exposure, such as head injury, brain tumors, middle ear diseases, and certain medications, can occur with or without hearing loss. Based upon the above, the Board finds that the criteria for establishing service connection for tinnitus have been met. The Board first observes that medical opinion indicates that right ear conductive hearing loss and tinnitus share the same etiology, and the Veteran has been denied service connection for right ear hearing loss as pre-existing service and not aggravated therein. Notably, however, VA treats hearing loss and tinnitus as separate disabilities for rating purposes. See 38 C.F.R. § 4.87, Diagnostic Codes 6100, 6260. Regardless of sharing the same etiology with right ear hearing loss, the Veteran's tinnitus was not noted upon service entry. As such, the Veteran must be presumed not to have manifested tinnitus prior to service. 38 U.S.C.A. §§ 1111, 1137. This presumption may only be overcome with clear and unmistakable evidence that tinnitus existed prior to service entry. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). "Clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). Here, the Veteran reported that the onset of tinnitus when his hearing loss began. He made this statement in the context of reporting that he perceived his hearing loss to have begun in service, although the audiometric data shows otherwise. There is no further clarifying statement. The VA examiner stated that "we can assume" that tinnitus manifested prior to service which cannot meet the clear and unmistakable burden. As the Veteran's type of tinnitus is diagnosed per subjective report only, there is debatable evidence as to whether tinnitus started before service. As such, the law dictates a finding that tinnitus first manifested during service. To the extent there is question of a nexus since service, there is a presumption of service connection for a chronic disease such as tinnitus, rebuttable only by clearly attributable intercurrent causes, which manifests during service and then again "at any later date, however remote." Groves, 524 F.3d at 1309. Here, the Veteran's tinnitus is an enumerated "chronic disease," manifested in service and post-service. Thus, pursuant to the presumption of soundness and Groves, the Board finds that the criteria for entitlement to service connection for tinnitus have been met. As to the remaining issue of service connection for a right ear disorder, including otitis media, otitis externa, and a perforated tympanic membrane, these issues were added to the record to encompass potential disorders evaluated during service. The Veteran was not diagnosed with perforated tympanic membrane, but evaluated for a potential perforation (rule out). Post service, there is no lay report of otitis media, otitis externa, and a perforated tympanic membrane, VA examination did not find the existence of these conditions, and there is no clinical evidence of such conditions. As such, the lay and medical evidence establishes that Veteran does not manifest any current right ear disability other than hearing loss and tinnitus. This aspect of the claim, therefore, must be denied. There is no reasonable doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107. The Board finally notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). There has also been no argument raised as the adequacy of VA examination. Robinson v. Mansfield, 21 Vet. App. 545 (2008). ORDER Service connection for tinnitus is granted. Service connection for a right ear disorder other than hearing loss and tinnitus, including otitis media, otitis externa, and a perforated tympanic membrane, is denied. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs