Citation Nr: 1751064	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  13-35 110	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to service connection for a liver disorder, claimed as a hepatitis condition.

3. Entitlement to service connection for bilateral hearing loss.

4. Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Robert Batten, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1976 to June 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

The Veteran underwent a videoconference hearing before the undersigned Veterans Law Judge in August 2015. A copy of the transcript is contained in the electronic claims file.  

The Board notes that the Veteran's claim regarding hepatitis C has been expanded to entitlement to service connection for a liver condition. Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) (a claim for a specific disorder by a lay person cannot be limited only to the diagnosis stated, but must rather be considered a claim for any disability having similar effects that may be reasonably encompassed). The issue has been recharacterized accordingly on the title page. 

In October 2015, this case was remanded for further development. It has since been returned to the Board and is ready for adjudication. 


FINDINGS OF FACT

1. The Veteran's current liver condition is not related to in-service event, injury, or disease.

2. The evidence is at least evenly balanced as to whether tinnitus was incurred in service.

3. The Veteran's hearing loss is not related to an in-service event, injury, or disease. 


CONCLUSIONS OF LAW

1. The criteria for an award of service connection for a liver condition have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017).

2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

3. The criteria for service connection for bilateral hearing loss 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 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Service Connection

In order to establish direct service connection, three elements must be established. These elements are: "(1) the existence of a present disability; (2) 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," which is often referenced as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability, there is no valid claim for service connection; an appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007).

In addition, certain chronic diseases, including sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding the 38 C.F.R. "§ 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[ ] of the nervous system'"). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Concerning hearing loss, for VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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 (2017).


III. Liver Condition 

The Veteran asserts that he suffers from hepatitis C. The Veteran's service treatment records indicate that the Veteran was diagnosed with hepatitis B in service. 

The Veteran's post-service VA treatment records indicate that in March 2007 the Veteran had negative tests for hepatitis B and C. In October 2009 the Veteran tested negative for hepatitis C. The Veteran had elevated liver tests in October 2010. In October 2013, the Veteran had a positive hepatitis B core AB test. In November 2014, the Veteran's primary care physician stated unless the Veteran was formally diagnosed with a liver disease it is not likely that his liver lesions had anything to do with hepatitis A or B.

The Veteran's post-service private treatment records noted that the Veteran had liver lesions. In June 2014, the Veteran's private physician found that the Veteran had two hepatic lesions and stated that the lesions would favor benign etiology. The private physician stated the liver was otherwise normal in appearance and there were no other significant findings in the abdomen, other than some unchanged renal cysts.  In March 2015, the Veteran's private physician found two hepatic lesions which were unchanged in size and are consistent with benign hemangiomas and a fatty liver.

The Veteran underwent a VA liver, gall bladder, and pancreas examination in May 2011. The examiner noted the Veteran's medical history of acute viral hepatitis in 1977. The examiner noted that Veteran was evaluated for mildly elevated aminotransferase level which was found 2007. The examiner further noted that in March 2007 the Veteran's hepatitis C anti-body was negative, hepatitis A antibody was reactive, and hepatitis B surface antibody and hepatitis B surface antigen were found to be negative. The Veteran's hepatitis C anti-body was negative again in October 2009. The examiner diagnosed the Veteran with acute viral hepatitis in 1977 with complete resolution and mildly elevated aminotransferase levels secondary to fatty liver disease.  The examiner reasoned that the Veteran's hepatitis A in 1977 resolved completely without sequelae or any chronicity. The examiner further reasoned that the Veteran's hepatitis C RNA was negative, ruling out chronic hepatitis C. Finally, the examiner reasoned that the Veteran had increased in weight and had developed changes consistent with a metabolic syndrome manifest as hypertension, hyperlipidemia, and borderline diabetes; and non-alcoholic fatty liver disease represents the hepatic component of the metabolic syndrome manifested as mildly elevated aminotransferase levels. 

In October 2013, the Veteran underwent another VA liver, gall bladder, and pancreas examination. The examination clarified conflicting evidence concerning the type of hepatitis the Veteran had. The examiner opined that the May 2011 examiner did not have the Veteran's complete service treatment records and that service treatment records indicate that the Veteran had hepatitis B, not A in service. The examiner opined that the Veteran does not have chronic hepatitis B infection. The examiner reasoned that the Veteran had negative hepatitis B surface antigen, hepatitis Be antigen, and hepatitis B quantitation. The examiner opined that it is less likely as not that there is any residual disability from hepatitis B the Veteran was treated for during service. The examiner further opined that the Veteran had elevated liver tests, but they are less likely than not due to hepatitis B because the Veteran does not have hepatitis B. Further, the examiner noted that there were no symptoms of hepatitis therefore it is less likely as not there is any residual disability from hepatitis B from which the Veteran was treated for in-service. 

In May 2016 an addendum medical opinion was provided. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran had a documented hepatitis B infection during military service; however, the results of past hepatitis B testing showed that the hepatitis B infection was resolved. The examiner explained that a diagnosis of chronic hepatitis B infection requires a positive hepatitis B surface Ag. Further, another marker of chronic infection, HBeAg, was also negative. The absence of serum HBV DNA also rules out an occult HBV infection with a negative HBsAg. Thus the examiner opined there is presently no evidence of a chronic hepatitis B infection. The examiner noted that the Veteran had mildly elevated liver transaminase enzymes, but found it was more likely than not associated with mild fatty liver which was documented in past liver CT scans. He further reasoned that a well-known risk factors for fatty liver, including obesity and elevated serum lipid levels. The examiner noted the Veteran's body mass index was 31.2, cholesterol level of 217, triglycerides 292, and LDL 150 therefore there is no evidence of a chronic hepatitis B infection that might cause fatty liver. The examiner also opined that it is less likely as not that the Veteran's documented liver lesions had its onset in service or otherwise is related to active service, or that it is due to or aggravated by the hepatitis B infection that he had during military service. The examiner reasoned that the Veteran's liver lesions were diagnosed as benign hemangiomas and they were no longer being monitored. The examiner, citing Uptodate.com, stated that the etiology of hepatic hemangiomas is incompletely understood, but they are considered to be a vascular malformations or hamartomas of congenital origin that enlarge by ectasia rather than by hyperplasia or hypertrophy. The examiner further stated that although hepatitis B infections are known to be associated with increased risk of hepatocellular carcinoma, there is no medical literature which shows an increased risk of liver hemangiomas due to hepatitis B infections. Finally, addressing the November 2014 medical note that liver lesions could theoretically be related to chronic hepatitis B, he noted that the medical note also stated they could be simply related to something else. Further, the examiner stated that a repeat liver MRI confirmed the liver lesions were benign hemangiomas. 

The Veteran testified in an August 2015 Board hearing. The Veteran stated that while in-service he was hospitalized for hepatitis B. The Veteran stated he sought treatment with the VA after service in the 80s. The Veteran stated he was only tested for hepatitis C and A, but not B. The Veteran stated that he had current symptoms of coughing blood and rectal bleeding. He further stated he had these symptoms beginning four, five, or six years ago. The Veteran symptoms first began as tenderness of his liver when pressed.

In November 2010, The Veteran's wife stated that he was not able to purchase life insurance because he was diagnosed with hepatitis C.  

In October and November 2010, the Veteran stated he was hospitalized for hepatitis in service. 

In October 2010 The Veteran's brother stated that the Veteran had hepatitis C in-service. He stated that the Veteran was unable to give blood and that he could not buy life insurance. 

The Board finds the Veteran's statements that he was hospitalized for hepatitis in service competent, credible, and provide probative weight. The Board finds that the statement that he was treated for hepatitis in the 1980s is not credible. The Veteran testified in the August 2015 Board hearing that he began to be treated for his symptoms of his liver condition 4, 5, or 6 years before he testified. Post-service medical records indicate the earliest the Veteran was treated for any liver condition was in March 2007. Therefore, the Veteran's statement that he had been treated for his liver in the 1980's is contradictory to his testimony and post-service medical records. 

The Board finds that the Veteran's wife statement that the Veteran could not buy life insurance because he was diagnosed with hepatitis C competent, but ultimately not credible. The Veteran's post-service treatment records have never found that the Veteran had hepatitis C. The Veteran himself testified in the August 2015 that he consistently was found not to have hepatitis A or C, and that the Veteran had hepatitis B. Similarly, the Board finds that the Veteran's brother's statement that the Veteran could not buy life insurance or give blood because he had hepatitis C is not credible as it is not supported by the record.

The Board finds that the Veteran has a current liver condition. The Veteran has liver lesions and fatty liver disease. Further the Board finds that the Veteran had an in-service illness of hepatitis B. However, the Board finds no nexus between the Veteran's current liver conditions and his in-service hepatitis B. The most probative evidence is the medical opinions from October 2013 and May 2016, which found that the Veteran does not have a current diagnosis of hepatitis B or residuals of hepatitis B; and that his liver lesions and fatty liver disease is less likely than not caused or aggravated by his in-service hepatitis B. Therefore, the Board finds that the service connection for a liver disorder is not warranted.

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a liver disorder, to include hepatitis B, and the claim is denied. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim for service connection for a liver disorder is denied. 

IV. Tinnitus

As noted above, tinnitus is considered a chronic disease. Under 38 C.F.R. § 3.303 (b), claims for certain chronic diseases-namely those listed in 38 C.F.R. §3.309 (a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303 (b). 

The Veteran's DD-214 notes that the Veteran military occupational specialty was in direct fire infantryman. The Veteran also provided photos of himself working on an artillery weapon. Therefore, the Board concedes that the Veteran was exposed to hazardous noise. 38 U.S.C.A.§ 1154 (a) (due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence).

In the August 2015 Board hearing the Veteran testified competently and credibly, to have symptoms of tinnitus since he was in service.  

In an August 2011 VA audiological examination, the examiner diagnosed the Veteran with tinnitus. During the examination the Veteran stated that he believed the ringing in his ears started while in-service. The VA medical examiner provided a negative nexus opinion and provided another negative nexus opinion in a May 2016 addendum opinion. The examiner's reasoned that the Veteran did not have hearing damage while in service because there was no significant threshold shift beyond normal variability. 

The Board finds that based on the tinnitus complaint recorded in his May 2011 VA audiological examination and his conceded noise exposure in-service the Veteran meets the first two requirements of service connection.  

As noted above, tinnitus claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. The Veteran asserts he has experienced tinnitus during his time in service. He is competent to report his symptoms of tinnitus, such as ringing in the ears. Layno v. Brown, 6 Vet. App. 465, 469 (1994). See 38 C.F.R. § 3.159 (a)(2).

Once evidence is determined to be competent, the Board must determine whether the evidence is also credible. Here, there is no evidence of greater weight in the record that contradicts the Veteran's testimony, and the Board finds the Veteran to be credible at his hearing. In this regard, the Veteran essentially contends that his tinnitus has been "chronic and continuous since discharge." These lay statements are considered competent evidence when describing the features or symptoms of an injury or illness within the realm of personal and observable knowledge.  There are certain situations in which lay evidence may suffice to prove service connection on its own merits, even in the absence of evidence in the service treatment records.  Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008).  This is one such case where the Veteran's competent and credible lay evidence as to in-service tinnitus and continuity of symptomatology is sufficient to support a claim for entitlement to service connection.  Based upon the facts, service connection tinnitus is warranted.  

V. Hearing Loss

Initially, the Board notes that as stated above, the Board concedes that the Veteran had noise exposure in service. The Veteran's service treatment records include his April 1976 entrance examination hearing examination which revealed clinically normal ears that show his hearing acuity in puretone thresholds. He had puretone thresholds, in decibels as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
10
5
0
0
0
RIGHT
10
5
0
0
0

The Veteran's June 1979 separation examination revealed clinically normal hearing and the Veteran did not note any hearing loss. He had puretone thresholds, in decibels as follows:





HERTZ



500
1000
2000
3000
4000
LEFT
15
5
0
-
15
RIGHT
20
10
0
-
5

Post-service VA treatment records noted that in August 1990 the Veteran had plugged right and left ears. The examination of the Veteran found the Veteran's left ear canal was swollen with an okay right ear. The Veteran was diagnosed with left ear otitis media. In February 1992, the Veteran VA treatment records note a punctured ear drum with decreased hearing acuity; he was diagnosed with right ear erythema in the canal. In July 1992, the Veteran was diagnosed with chronic ear infections for the past eight months. The Veteran had decreased hearing ability and had otitis media. Treatment records indicate that the Veteran suffered from further ear infections in his right ear in January 1996 and November 1996.

In November 2010, the Veteran stated that he fired mortar rounds for three years without ear protection. 

In November 2010, the Veteran's wife stated that the Veteran had to make several trips to the doctor because of a hearing impairment. 

In November 2010, the Veteran's brother stated that he witnessed his brother have continued hearing loss. He stated that chemical warfare exercises and battlefield training contributed to his hearing impairment.

The Veteran testified in an August 2015 Board hearing. The Veteran stated that he first noticed hearing loss when he was in service. He stated that he was exposed to hazardous noise when he was a mortar infantryman. He stated he was not exposed to any other hazardous noise when he left service. 

In April 1994 the Veteran underwent a VA audiological examination. He had puretone thresholds, in decibels as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
-
10
15
15
45
RIGHT
-
10
10
10
35

The Veteran's average puretone threshold for his left ear was 16 and 21 for his right ear. The Veteran had a speech recognition score of 96 percent in both the right and the left ear. 

In May 2011, the Veteran underwent another VA audiological examination. He had puretone thresholds, in decibels as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
25
20
25
45
60
RIGHT
20
20
15
35
70

The Veteran's average puretone threshold in decibels for his left ear was 38 and 35 for his right ear. The Veteran had a speech recognition score of 94 percent in his left ear and 96 percent in his right ear. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The Veteran reported that he had significant hearing difficultly and that it affected his employment because he had difficulty communicating. The examiner opined that the Veteran's hearing loss is less likely as not caused by or the result of nose exposure while in service. The examiner reasoned that while the Veteran was exposed to hazardous noise levels while in service, entrance and discharge examinations found no significant threshold shift beyond normal variability. 

In May 2016, VA acquired an addendum audiological opinion. The examiner opined that the Veteran's hearing loss is less likely than not caused by the Veteran's exposure to hazardous noise. The examiner reasoned that although he had exposure to hazardous noise levels in service; the evidence shows there was no noise injury while in service. The examiner cited the Institute of Medicine (IOM) study that stated that that not everyone who is exposed to hazardous noise will suffer a noise injury, and that delayed onset hearing loss due to previous noise exposure is unlikely to occur. The examiner explained that the Veteran's slight shift in auditory thresholds from entrance to exit examination was within normal measurement variability. The examiner addressed the Veteran's right ear pain, otitis media, erythema, ear infections, and punctured ear drum in the 1990s. He opined that there was no significant threshold shift beyond normal measurement variability while in service and therefore any hearing loss that occurred following service is less likely as not cause by or the result of noise exposure or some other event in-service. The examiner addressed the lay statements of his friends and family by noting that the evidence clearly and convincingly shows that the Veteran did not have a hearing injury while in-service.  

The Board finds the Veteran's statement that he experienced loss of hearing during service while competent is ultimately not credible. The Veteran had a normal hearing examination at separation from service and did not note a hearing issue. The Board finds the Veteran's wife statement that the Veteran suffered from hearing loss competent and credible. The Veteran's brother's statement that the Veteran's service contributed to his hearing loss is not competent. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159 (a)(2).

The Board finds that the Veteran has a current hearing loss disability. The Board finds that the Veteran was exposed to hazardous noise levels in service. However, the Board finds that there is no nexus between the Veteran's current hearing loss and his exposure to hazardous noise because the most probative evidence is that the Veteran did not have a noise injury in service resulting in post-service hearing loss. Further, the VA examiner from the May 2016 opinion found that the Veteran's in-service threshold shift was within normal variability. The Board also notes that objective evidence of hearing loss did present itself until February 1992, over twelve years after leaving service.  

Essentially, there is no competent and credible evidence of a bilateral sensorineural hearing loss in service.  To determine that a chronic disease was shown in service, the disease identity must be established.  38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1339.  No examiner in service, or since, has established chronicity or an underlying chronic disease process in service.  Characteristic manifestations sufficient to identify the disease (bilateral sensorineural hearing loss) entity were not noted.  Here, the weight of the probative evidence of record simply fails to demonstrate an in-service incurrence of hearing loss or that the Veteran's hearing loss became manifest to any degree within one year of separation from service.  Because hearing loss was not present or noted in service, the provisions of 38 C.F.R. § 3.303 (b) pertaining to chronicity or continuity of symptomatology are not applicable in this case.  

The claim of entitlement to service connection for bilateral hearing loss disability must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for a liver condition is denied

Service connection for bilateral hearing loss is denied

Service connection for tinnitus is granted




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs