Citation Nr: 1753987	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO.  13-27 841	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


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 a back disability.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M. Nye, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1971 to September 1973.

This case comes to the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In its decision, the RO denied claims for service connection for hearing loss, tinnitus and for a back disability.  The rating decision also denied benefits for six other claimed disabilities.  In his notice of disagreement, the Veteran appealed all six rulings, but in his substantive appeal (VA Form 9), he limited his appeal to the issues listed on the title page of this decision.  

In January 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

In June 2016, the Board issued a decision and remand, in which it determined that new and material evidence had been submitted to reopen previously denied claims for each of the disabilities listed on the title page of this decision.  The three reopened claims were remanded for further development.  


FINDINGS OF FACT

1. The Veteran's current hearing loss disability did not manifest in service and is not otherwise related to any in-service disease, injury or event.

2. The evidence is approximately evenly balance as to whether the Veterans' current tinnitus had its onset in service.

3. The Veteran's current back disability did not manifest in service and is not otherwise related to any in-service disease, injury or event.


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, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2017).

2. With reasonable doubt resolved in the Veteran's favor, his tinnitus disability was incurred in service.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2017).

3. The criteria for service connection for a back disability have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303, 3.307, 3.309.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans' Claims Assistance Act

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).

Duty to Notify

The notice VCAA requires depends on the general type of claim the Veteran has made. "As a result, generic notice provided in response to a request for service connection must differ from that provided in response to a request for an increased rating."  Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of disability.  Id. at 486.

The claimant in this case has substantiated his status as a veteran.  In a letter dated March 2011, the RO notified him of the need to establish all of the other elements of his claims for service connection.  The letter further informed the Veteran that the three pending claims had previously been denied and that they would be reopened and reconsidered if the RO received new and material evidence.  By sending this letter, the RO complied with VA's duty to notify.  

Duty to Assist

VA has similarly fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim.  Service treatment records, service personnel records, post-service medical records, and lay statements have been associated with the claims file.

The RO arranged for VA examinations of the Veteran's claimed hearing loss and tinnitus in June 2007 and November 2010.  The June 2007 examination report was inadequate, because it did not contain auditory threshold test results, in decibels.  The Board has, however, reviewed the November 2010 report which, together with an addendum opinion dated July 2016, is adequate to decide the claims.  The RO arranged an examination of the Veteran's back and spine in August 2016.

The duty to assist requires that the Board enforce compliance with its prior remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  During the April 2013 Travel Board hearing, the Veteran indicated that he did not believe that VA had received all of the records of his post-service treatment from medical providers in private practice.  For this reason, in its January 2016 remand instructions, the Board instructed the RO to send the Veteran a new letter inviting him to authorize the release of additional outstanding treatment records.  The Veteran replied to this letter in July 2016.  In his reply, he indicated that all the records that he wanted VA to consider had been submitted.  By sending the post-remand development letter and by obtaining the July 2016 audiology opinion and the August 2016 VA back examination report, the RO complied with the Board's remand instructions.  

As the Veteran has not identified additional evidence pertinent to the issues on appeal and as there are no additional records to obtain, no further assistance is required to comply with VA's duty to assist.

II. Analysis

General Legal Provisions

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To establish a right to compensation for a present disability, 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 - or "nexus" -  between the present disability and the disease or injury incurred or aggravated during service.  See Holton, 557 F.3d at 1366 (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Hearing Loss and Tinnitus

Impaired hearing is considered 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 threshold for at least three of those frequencies are 26 decibels or greater; or when the Veteran's speech recognition scores on the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385.  

In July 1973, the Veteran had a hearing examination shortly before his separation from active duty.  His auditory thresholds at that time were as follows:




HERTZ



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

In May 2006, the Veteran filed his initial claim for service connection for hearing loss and tinnitus.  According to a written statement, which he filed with his initial application, the Veteran served as a combat engineer.  This information is consistent with his certificate of discharge from active duty (Form DD 214).  In his written statements the Veteran explained that, during the course of his duties as a combat engineer, he was exposed to loud noises, including the sounds of heavy equipment, explosions, rifles and artillery.  

To help decide his claim, the RO arranged for the Veteran to be examined by a VA audiologist in June 2007.  This report was inconclusive and the examiner indicated that it was impossible for him to report auditory thresholds in decibels because of the Veteran's unwillingness to cooperate with the test.  According to the examiner, the Veteran reported the onset of tinnitus in service.  The claims file also includes a test report from an audiologist in private practice, dated June 2006.  The notes in this report are difficult for the Board to interpret, but a subsequent VA audiologist's opinion, which will be discussed shortly, adequately explained those findings.  

In February 2010, the Veteran participated in a second VA audiology examination.  The examiner obtained some information from the Veteran concerning his medical history.  Specifically, the Veteran was exposed to loud noises in service.  At the time of the examination, he worked as a locksmith.  He had previously been employed as a maintenance worker and as a truck driver, with some occupational noise exposure.  The Veteran reported no recreational noise exposure.  He complained of current tinnitus and indicated that it was constant.  He reported the onset of tinnitus shortly after the end of his military service.  

During his February 2010 examination, the Veteran's auditory thresholds in decibels were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
20
20
20
LEFT
10
5
25
30
25

His Maryland CNC speech recognition scores were 98 in the right ear and 96 in the left ear.  

The examiner's diagnosis was high frequency sensorineural hearing loss in the left ear.  However, because there were no auditory thresholds of 40 decibels or greater and either ear and the test results did not indicate auditory thresholds of 26 decibels or greater for at least three of the relevant frequencies in either ear, the February 2010 test results did not meet the regulatory criteria for hearing loss disability.  

After further proceedings, the Veteran submitted a report from another audiologist in private practice, dated January 2016.  This report includes a decibel threshold chart, which is somewhat difficult to read, but it appears that, at the frequency of 4000 Hertz, the Veteran's auditory thresholds were greater than 40 decibels in both ears.  And it is clear that the private audiologist administered the Maryland CNC speech discrimination test again and that the Veteran's scores were no greater than 90 percent in both ears.  Unlike the January 2010 results, these test results do meet the regulatory criteria for hearing loss disability.  See 38 C.F.R. § 3.385.  

Unlike hearing loss, a claim for service connection for tinnitus does not depend on the application of technical testing criteria.  Given the nature of tinnitus, the Veteran himself is competent to provide evidence that the condition is present.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). 

The January 2016 private audiologist's report satisfies the current disability requirement of the Veteran's hearing loss claim.  Acoustic trauma due to combat or other loud noise has been accepted as satisfying the in-service disease or injury element of claims for service-connected hearing loss and tinnitus.  See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (sound of mortars firing); Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (jet aircraft noise).  The Veteran's credible statements concerning his loud noise exposure, which is consistent with the circumstances of his service, satisfies the in-service disease or injury requirement with respect to both hearing loss and tinnitus.  

Accordingly, the success of the Veteran's claims for service connection for both claims depend on the existence of a causal link - or "nexus" - between acoustic trauma in service and the currently claimed disorders. 

To help decide whether the required nexus exists, in July 2016 the RO obtained an addendum opinion from a VA audiologist.  In the audiologist's opinion, it was less likely than not that the Veteran's current hearing loss and tinnitus was caused by military noise exposure.  In explaining the reason for his opinion, the audiologist emphasized normal auditory thresholds at the time of the Veteran's enlistment and separation examinations.  The examiner also described a 2005 study on hearing loss conducted by the Institute of Medicine, a division of the National Academy of Sciences, indicating that the most pronounced effects of noise-induced hearing loss usually arise within 30 days of the noise exposure.  

The July 2016 audiologist was also able to provide helpful information interpreting the June 2006 private audiogram submitted by the Veteran.  According to the audiologist, the difference between speech recognition thresholds and pure tone averages in the June 2006 test was inconsistent with non-organic hearing loss.  He explained that the June results indicated the presence of "bilateral conductive hearing loss" but emphasized that this finding "is NOT consistent with a noise-induced hearing loss as conductive hearing loss is unrelated to noise exposure."  

According to the examiner, the January 2016 private audiogram appeared to be valid and demonstrated bilateral high frequency hearing loss.  But he explained that because the January 2016 results reflect the quality of the Veteran's hearing more than forty years after the end of his active duty service, the hearing loss reflected in the test was "more likely due to factors such as aging and post-military noise exposure."  In the examiner's opinion, the February 2010 test rests -  which "show normal hearing present in the right ear from 500-6000 Hz and essentially normal hearing in the left ear with the exception of a mild hearing loss at 3000 and 6000 Hz (which does not meet criteria for disability under VA regulations)" - supported his conclusion that current hearing loss was unrelated to military noise exposure.  The examiner acknowledged the Veteran's lay statements, which indicate that the onset of hearing loss much earlier, but he concluded that these statements were inconsistent with the sequence of normal auditory threshold test results.  

On the issue of whether a connection exists between a current hearing loss disability and military noise exposure, the Board finds that the most persuasive evidence is the July 2016 VA audiologist's opinion.  In Hensley, 5 Vet. App. at 159 and in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), the Court found that the absence of hearing loss disability in service is not necessarily fatal to a claim for compensation for post-service hearing loss disability.  But in this case, the evidence against the claim is stronger than it is in cases which merely indicate normal hearing at the time the claimant separated from service.  In this case, the Veteran's hearing was normal decades after his separation from service and only recently met the criteria for hearing loss disability.  

At the January 2016 videoconference hearing, the Veteran's representative conceded that the Veteran's hearing was within normal limits as of five years earlier.  The Veteran testified that he believed his hearing was worse than it was at the time of his February 2010 VA audiology examination.  Based on the auditory threshold and speech recognition test scores, this appears to be true.  Nevertheless, this testimony does not establish a link between his current hearing loss disability and military noise exposure.  Indeed, the Veteran's testimony is consistent with the July 2016 examiner's explanation for concluding that such a link was unlikely.  

For these reasons, the Board must deny the Veteran's claim for service connection for a bilateral hearing loss disability.  The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for service connection.  See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  Although the evidence demonstrates the presence of a current hearing loss disability, the preponderance of the evidence weighs against a finding that a causal connection exists between that disability and service.  Thus, the benefit of the doubt doctrine does not apply, see 38 U.S.C.A. § 5107(b), and the claim must be denied.

As for tinnitus, the Veteran testified that he first noticed mild ringing in his ears during service and that similar symptoms have persisted ever since.  He also submitted a statement, dated November 2010, in which he wrote that his "ears started ringing when I was in [the] military, I went to [the] rifle range, I did live fire exercises . . . ."  The July 2016 VA audiologist's opinion was that, as in the case of hearing loss, it was unlikely that tinnitus was related to in-service noise exposure.  To support this opinion, the examiner noted the absence of complaints of tinnitus in the available service treatment records.  He also emphasized that tinnitus is often accompanied by hearing loss.  In the examiner's view, because hearing loss was unrelated to military noise exposure, it was also unlikely that tinnitus was related to service.

In the case of tinnitus, the examiner's opinion is less persuasive than it was for hearing loss.  In the Board's view, the absence of complaints of tinnitus in the service treatment records is insignificant.  The report of medical history form completed by the Veteran in service did not ask him whether or not he ever experienced a ringing sensation in his ears.  In his May 2008 statement, the Veteran indicated that, "I did not know until recently that the ringing in my ears was a medical condition . . . ."  Moreover, the Veteran himself is competent to testify that he experienced tinnitus in service.  See Charles, 16 Vet. App. at 374.

Under these circumstances, it is at least as likely as not that the Veteran's current tinnitus had its onset in service.  By law, the doubt resulting from this relative equipoise in the evidence is resolved in The Veteran's favor.  See 38 U.S.C.A. § 5107(b); Wise, 26 Vet. App. at 531 ("By requiring only an 'approximate balance of positive and negative evidence' . . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits.").  For these reasons, the Board will grant service connection for tinnitus.  

Back Disability

According to a July 1973 medical examination report, the Veteran's spine was normal when he was discharged from active duty.  There is no indication of a back injury in his service treatment records.  

According to an MRI imaging study report, dated February 2016, the Veteran has moderate spondylosis changes with disc herniations at L2-L3, L3-L4, L4-L5, and L5-S1.  In his hearing testimony, he attributed his current back disability to an injury he sustained when moving a heavy spare tire from an Army truck.  According to a written statement, his back pain began at the time of this injury and has worsened since then.  

To support his claim, the Veteran has submitted written statements from his brother and his son.  According to his brother, the Veteran told him that he had hurt his back shortly after his discharge from the Army.  The Veteran's brother also indicated that, during the Veteran's post-service work for a carpet company, the Veteran was excused from the need to carry heavy carpets.  The Veteran's son wrote that, unlike his friends' fathers, the Veteran was unable to play sports with him because he had injured his back in the military.  

Based on the current diagnosis and the written statements, the Board remanded the back disability claim in June 2016 with instructions to arrange an examination.

On remand, a VA staff physician examined the Veteran's back in August 2016.  The examiner's subsequent report indicates that her findings were based on her in-person examination and a review of the claims file.  The diagnosis was spondylosis.  Lumbar spondylosis is "degenerative joint disease affecting the lumbar vertebrae and intervertebral disks, causing pain and stiffness, sometimes with sciatic radiation due to nerve root pressure by associated protruding disks or osteophytes."  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1754 (32d ed. 2012).   

Since this diagnosis indicates the presence of a form of arthritis, the Board will consider whether service connection for chronic disease is available on a presumptive basis.  For certain chronic diseases, including arthritis, see 38 C.F.R. § 3.309 (a), the law presumes the disease was incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3) (2017).

The August 2016 examiner summarized the Veteran's relevant medical history, including his statements that he injured his back in 1972 when unloading a tire.  He told the examiner that, at that time, he sought treatment and received pain medication.  After he left the Army, the Veteran began working for a tire company.  He told the examiner that, at approximately that time, he experienced back pain and visited a physician, who ordered an x-ray.  The Veteran told the examiner that this x-ray was normal.  The examiner noted the findings of the February 2016 MRI report.  Symptoms of spondylosis included slightly reduced lumbar flexion and extension.  According to the examiner, there was no evidence of pain on palpation of the joints or soft tissues of the lumbar spine.  There was also no evidence of pain with weight bearing.  Muscle strength and reflex test results were normal.  

In the examiner's opinion, it was less likely than not that the Veteran's current spondylosis was the result of the claimed in-service back injury.  She explained that spondylosis is the most common cause of lumbar stenosis for persons over 60 years of age.  In her opinion, it was more likely than not that the Veteran's spondylosis was the result of the aging process.  The examiner considered the possibility that the current condition could be related to the in-service injury he described to her - i.e., the injury he said he experienced when moving the heavy spare tire.  According to the examiner, the symptoms the Veteran described "are more in line with back strain.  Muscle strain of the thoracolumbar spine is a soft-tissue disorder which typically resolves in several weeks to months without residuals or long-lasting sequelae."  The examiner further indicated that she had reviewed medical literature, which "does not recognize lumbar strain/sprain as a known cause of spondylosis or degenerative disc disease." 

The examiner acknowledged that the absence of contemporaneous records was not, by itself, a sufficient reason for rejecting the Veteran's description of his claimed in-service injury.  For this reason, the examiner assumed, for the purposes of her opinion, that the Veteran sustained a back strain in service.  

The Veteran's testimony and the current diagnosis of spondylosis satisfy the current disability and in-service disease or injury requirements of his back disability claim.  As in the case of his hearing loss claim, success depends on whether a causal connection exists between the current disability and any in-service disease, injury or event.  With respect to this issue, the Board finds that the most persuasive evidence is the opinion of the August 2016 VA examiner.  

The examiner's report was based on an in-person examination of the Veteran and the information within the report is consistent with the other medical evidence.  The examiner also provided a clear explanation for her conclusion.  See Nieves-Rodrigeuz v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations include whether the person opining is suitably qualified and sufficiently informed).  

The examiner explained that, according to the medical literature she had consulted, lumbar strain was not a known cause of spondylosis or degenerative disc disease.  Although she did not identify the specific medical literature she used to support this opinion, there is no requirement that a medical examiner cite specific medical literature to support an opinion.  See Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012) (examiner's failure to "explicitly cite any [medical] studies is not evidence that she was unaware of such studies, and it is not a basis for finding the examination report inadequate").  The examiner considered the lay statements of the Veteran, his brother and his son and her opinion was based on the assumption that the Veteran's in-service back injury happened as he said it did.  

For these reasons, the Board finds that the August 2016 medical opinion is adequate.  The Veteran has suggested that a contrary conclusion is reasonable based on his own statements and the statements of his son and brother.  But these statements are vague in terms of the timing of the Veteran's symptoms.  The statements of his son and brother are essentially secondhand reports of what the Veteran had told them.  Of course, the Veteran is competent to provide evidence that he hurt his back when moving the tire and that he experienced pain.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007).  But he is not competent to provide opinion evidence concerning a matter of medical complexity, such as the probability that his in-service back injury is related to a case of spondylosis first identified in an MRI study more than forty years later.  

At the hearing in this case, the Veteran testified that none of his treating physicians had told him that they believed his current back problems were related to his injuries in service.  Weighing this testimony together with the August 2016 medical opinion, the Board finds that the Veteran's current spondylosis is not related to service.  

As for the issue of whether arthritis manifested to a compensable degree within the first service year, the Veteran told the examiner that he visited a physician for back pain shortly after his separation from active duty.  But, according to him, the x-ray was normal.  The Board therefore finds that the evidence is insufficient to establish presumptive service connection for chronic disease under 38 C.F.R. §§ 3.307(a) and 3.309(a).  

Although the evidence demonstrates the existence of a current back disability and an in-service injury or event, the preponderance of the evidence weighs against a finding that a causal connection exists between that disability and service.  Thus, the benefit of the doubt doctrine does not apply, see 38 U.S.C.A. § 5107(b), and the claim must be denied.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.

 Entitlement to service connection for tinnitus is granted.


Entitlement to service connection for a back disability is denied.  




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs