Citation Nr: 1751906 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-36 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois 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 hypertension, to include as secondary to herbicide exposure and service-connected ischemic heart disease. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to February 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal of September 2012 and December 2012 rating decisions of the Chicago, Illinois Regional Office (RO) of the Department of Veterans Affairs (VA). A videoconference hearing in this matter was held in March 2017. The transcript is of record. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A bilateral hearing loss was not manifest during service or within one year of separation. Hearing loss disability is not attributable to service. 2. Tinnitus was manifest in service. CONCLUSIONS OF LAW 1. Hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. Tinnitus was incurred during wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.102, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The duties under VCAA have been met. Service Connection Generally, to establish service connection a Veteran must show: "(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." Davidson v. Shinseki , 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303(b). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Bilateral hearing loss The Veteran claims entitlement to service connection for a bilateral hearing loss disability. A February 2011 VA audiological examination showed hearing loss in both ears that is disabling for VA purposes. 38 C.F.R. § 3.385. The Veteran asserts that his hearing loss had its onset in service and has been consistent ever since. The Veteran is competent to report that he has experienced hearing loss since shortly after separation, as hearing loss is easily observable and within the realm of common knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet.App. 428 (2011). The Veteran testified at his hearing that he has has symptoms of hearing loss since his time in Vietnam. The Board notes that the Veteran denied hearing loss at separation. However, all other statements submitted attest to his hearing loss being present upon his return from service. The Veteran also submitted lay statements from family members stating that the Veteran manifested symptoms of hearing loss as early as his return from service. The Veteran's sister submitted a statement asserting that the Veteran exhibited hearing loss symptoms immediately upon his return from service. She noted that his hearing was fine when he left, but was noticeably worse immediately upon his return. She is competent to report the lay observable symptoms of hearing loss.. His wife testified at the hearing that he has displayed symptoms of hearing loss since she met him shortly after he left service. She stated that it has been consistent since then and has gotten worse over time. She is competent to report this observation. Similarly, the Veteran's daughters each alleged that his hearing loss has been present throughout their lives, stating that he often could not hear them even when they were small children. These statements are again competent and credible, but as his daughters can report only on his hearing loss in their lifetimes, and not immediately upon his return from service, the Board finds these statements to be of some probative weight. At his examination, the examiner opined that it was less likely than not that his hearing loss is the result of in-service noise exposure because his audiological examination upon separation from service showed normal hearing, and there is no medical evidence for delayed onset hearing loss due to noise exposure. The examiner also noted that the Veteran stated he had no hearing loss at that time and that there are no medical records showing hearing loss in the years immediately following discharge. The Board finds this opinion to be competent and credible and entitled to significant probative weight. Here, there is a conflict in the evidence. The witnesses have reported that they noticed a decrease in acuity either during service or shortly thereafter. They are competent to report such observable symptom. In addition, we accept that they believe the statements to be accurate. However, far more probative and credible are the contemporaneous service records. Here, the separation examination disclosed that an audiometric examination was conducted and was normal. Consistent with the normal finding was the Veteran's denial of pertinent pathology at that time. Furthermore, we are presented with a reasoned opinion that the remote onset of hearing loss is inconsistent with the service records. Here, neither hearing loss nor an organic disease of the nervous system were noted during service or within one year of separation. He did not have characteristic manifestations sufficient to identify the disease process and the normal findings are inconsistent with his remote report of in-service onset or continuity. When we compare the lay evidence with the service records and the medical evidence, we conclude that contemporaneous records are far more probative than lay evidence advanced decades after the fact. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Tinnitus Tinnitus is an organic disease of the nervous system, and is therefore considered a chronic disease for VA purposes and service connection based on continuity of symptomatology is applicable in this case. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). The Veteran has reported that he currently has tinnitus, which he is competent to report. Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002). Further, the Veteran credibly reported that his tinnitus both had its onset in service and has been persistent since. Unlike the evidence regarding hearing loss, there are no contemporaneous service records addressing the presence or absence of tinnitus. ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. REMAND The Board finds that an additional VA medical opinion is warranted to address the relationship between the Veteran's hypertension and his conceded exposure to an herbicide agent during service. The December 2013 VA medical opinion provided opinions as to direct and secondary service connection, specific to the Veteran's service-connected ischemic heart disease. However, the examiner did not specifically address the Veteran's contention that his hypertension is due to his exposure to herbicide agents. Attention is noted to the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2012. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). NAS placed hypertension in the category of "limited or suggestive evidence" to mean that the "evidence suggests an association" between exposure to herbicides and the outcome, but a firm conclusion is limited because change, bias, and confounding could not be ruled out with confidence. See 79 Fed. Reg. 20,308. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to a VA examiner of appropriate knowledge and expertise. It is up to the discretion of the examiner if a new examination is necessary, or in the alternative, an addendum opinion is sufficient. The examiner is requested to provide the following opinion: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is related to presumed herbicide agent exposure, had its onset in service, or is otherwise medically related to service. In rendering this opinion, attention is noted to the NAS's Agent Orange: Update 2012. 2. After the above is complete, readjudicate the Veteran's claims. If a complete grant of all benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. The Veteran 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). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs