Citation Nr: 1800878 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 15-40 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a low back disorder, including as secondary to a service-connected left knee disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2012 and June 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the claim of entitlement to service connection for a low back disorder was at one point characterized by the RO as a claim to reopen. However, the Veteran indicated his desire to "reopen" his low back claim in a May 2012, less than one year after the initial rating decision denying his claim. Thus, the Board finds that the February 2012 rating decision did not become final. See 38 C.F.R. § 20.201 (2012) (defining a Notice of Disagreement as a written communication from a claimant or representative expressing dissatisfaction or disagreement with an adjudicative determination of an AOJ and a desire to contest the result). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran's bilateral hearing loss and tinnitus manifested more than one year after his separation from service and are not related to his in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for bilateral hearing loss and tinnitus. He attributes his hearing loss and tinnitus to significant noise exposure that he experienced in service as a welder. The Veteran denies occupational or recreational noise exposure post-service, reporting that he worked as a mail handler and postal driver for several years before becoming a manager. He reports constant bilateral tinnitus starting "20 to 30 years ago." See June 2014 VA Examination. The Board finds that service connection for bilateral hearing loss and tinnitus is not warranted because the most probative evidence of record does not support a finding that these conditions are related to his military service or began until well after his separation from service. Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, the claimant must show (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship or "nexus" between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As an initial matter, the evidence of record shows that the Veteran has a current bilateral hearing loss disability as defined in 38 C.F.R. § 3.385 and that he suffered an injury in service when he was exposed to extreme loud noises. Thus, the first two elements of direct service connection (i.e., an in service injury or event and a present disability) have been established. The Veteran's claims turn on the nexus element: whether the Veteran's hearing loss and tinnitus are related to or had an onset in service. The most probative evidence of record does not support the finding of a nexus between the Veteran's bilateral hearing loss or tinnitus and his in-service noise exposure. The Board finds that the most probative evidence of record is the opinion of the VA examiner as set forth in the June 2014 VA examination report and the November 2015 VA Compensation and Pension Examination Medical Opinion. The VA examiner opined that it is less likely than not that the Veteran's hearing loss is due to his in service noise exposure. The VA examiner noted that the Veteran's service treatment records showed that he had normal hearing at entry into service and normal hearing at separation with no standard threshold shifts in either ear at separation. She observed that the Veteran's service treatment records did not contain a report of hearing problems during service. In the November 2015 medical opinion, she further noted that medical research does not support the conclusion that permanent hearing loss directly attributed to noise exposure will develop long after the noise exposure ends. Referencing the findings of the Institute of Medicine (IOM) in its "landmark" report, Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), the VA examiner noted that based on the anatomical and physiological data available on the recovery process following noise exposure, a prolonged delay in the onset of noise induced hearing loss was unlikely. The VA examiner reported that this study remains the definitive consensus in the medical community concerning the relationship between noise induced hearing loss and the onset of symptoms. Thus, the VA examiner observed that despite the fact that the Veteran was a welder in service and was exposed to loud noise, he had normal hearing at separation, after the noise exposure occurred. She concluded that given the research discussed above, it was her opinion that it is less likely than not that the Veteran's hearing loss is related to military service. Concerning tinnitus, the VA examiner explained that the Veteran reported the onset of tinnitus "20 to 30 years ago," and that an onset of tinnitus between 1984 and 1994 is too far delayed from military service to be attributed to noise exposure in service. The VA examiner further reasoned that the Veteran exited the military without acoustic damage (as shown by his separation examination). The opinions of the VA examiner are based on a review of the Veteran's medical history, including his service treatment records, reports concerning the onset of his hearing loss and tinnitus, and reports concerning noise exposure during and after service. The opinions are also based on physical examination, audiological testing and a review of the available medical literature. The Board finds the VA examiner's opinions to be highly probative as to whether a nexus exists between the Veteran's current bilateral hearing loss/tinnitus and his noise exposure during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing the three factors the Board must consider in determining the probative value to be assigned to a medical opinion: (1) whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case, (2) whether the medical expert provided a fully articulated opinion, and (3) whether the opinion is supported by a reasoned analysis); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("a medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The June 2014 VA examiner's opinion is uncontroverted by any other competent medical opinion evidence of record. Although the Veteran contends that his bilateral hearing loss and tinnitus are caused by his in-service noise exposure, he is not competent to give a medical opinion as to the etiology of bilateral hearing loss or tinnitus, which requires clinical expertise. See Jandreau v Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). Additionally, the Board finds that there is insufficient evidence to show that it is at least as likely as not that the Veteran's bilateral hearing loss or tinnitus began in service or within one year of his separation from service and have been continuous since that time. A claimant may establish service connection for bilateral hearing loss or tinnitus on a presumptive basis if the evidence shows that the condition manifested to a compensable degree within one year after his separation from service, or that the claimant exhibited continuity of symptomatology of that condition since leaving service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In this case, there is no competent and credible evidence demonstrating that the Veteran's hearing loss or tinnitus manifested within one year after his separation from service or that the Veteran has experienced hearing loss or tinnitus symptoms since service. The Veteran denied having hearing loss at his separation from service and the audiological testing performed at this time showed normal hearing. There are no service treatment records showing complaints of hearing loss, ear symptoms or tinnitus during service. Significantly, the Veteran reported during the June 2014 VA examination that his tinnitus first began many years after his separation from service. The Veteran's representative argues that the Veteran's lay statements that his hearing loss and tinnitus began in service are competent and credible lay evidence in support of his claim. The Board notes that a lay person is competent to report on the onset and recurrence of symptoms capable of observation, and that this lay evidence may establish etiology in certain cases. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, in this case, it does not appear that the Veteran has actually reported that his hearing loss or tinnitus began during service or within one year of separation from service. The only documents of record indicating that the Veteran's hearing loss or tinnitus began during service are the December 2013 written claim for benefits and the June 2014 Notice of Disagreement, both prepared and signed only by the Veteran's representative. Neither of these documents are signed by the Veteran or submitted as certified or under oath or affirmation. See 38 C.F.R. § 3.200 (stating that all written testimony submitted by the claimant or in his or her behalf for the purpose of establishing a claim for service connection will be certified or under oath or affirmation). Thus, it is questionable whether they constitute evidence provided by the Veteran as to the onset of his symptoms. Even assuming that the statements made by the representative are properly before the Board as evidence concerning the onset of the Veteran's bilateral hearing loss and tinnitus, the Board does not find these statements to be credible because they are inconsistent with the other evidence of record, including the Veteran's own statements made at separation from service and during the June 2014 VA examination. The credibility of evidence can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, bias, self- interest, malingering, desire for monetary gain and witness demeanor. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Here, the Board assigns more weight to the Veteran's denial of hearing loss or other ear symptoms at his separation from service and his reported onset of tinnitus several decades after his military service. At separation from service, the Veteran completed a Report of Medical History on which he checked "no" where asked if he has or ever had hearing loss or ear, nose or throat trouble. See November 1967 Report of Medical History. As noted above, he was found to have normal hearing at separation and there is no indication on his separation examination report that he suffered from any hearing trouble or tinnitus. See November 1967 Separation Examination Report. The Board affords more probative weight to the Veteran's denial of symptoms noted on his separation Report of Medical History because they were made contemporaneous with his separation from service rather than many years later, when his memory may be altered by the passage of time. The Board also finds these statements to be more credible because they are consistent with the findings of his separation examination and were made before he submitted a claim for benefits. Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (noting that interest in the outcome of the proceedings "may affect the credibility of testimony"). At his June 2014 VA audiological examination, the Veteran reported "possible hearing loss" at that time, stating that he "sometimes" has people repeat themselves, but other times he is fine. He did not report during the examination an onset of hearing loss during service or within one year after his separation from service. With regard to tinnitus, the Veteran reported an onset of tinnitus "20 or 30 years ago," which places the onset of his tinnitus between 1984 and 1994, well after his separation from service. The Board finds that the Veteran's statement that his tinnitus symptoms began decades after his separation from service is a declaration against interest, and hence is of greater credibility than other, inconsistent statements made for pecuniary gain. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1337(Fed. Cir. 2006) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."). In the June 2014 Notice of Disagreement, the Veteran's representative argues that although the Veteran "guessed" at the VA examination that he began experiencing tinnitus 20 to 30 years ago, "it is plausible that he misunderstood the question asked or was reporting some additional ear symptoms." The Board does not find this argument to be persuasive. Again, the Board finds it significant that the Veteran himself has not submitted a signed, written statement controverting the statements he made during the June 2014 VA audiological examination. Moreover, the language used by the representative is equivocal at best. The representative stated that it was "plausible" that the Veteran misunderstood the question, not that the Veteran did in fact misunderstand what was being asked of him or made a mistake when he reported that his tinnitus began many years after his separation from service. In light of the totality of the evidence, the Board affords more probative value to the Veteran's statements made at his separation from service and during the June 2014 VA examination denying hearing loss and tinnitus symptoms than to the statements of his representative claiming that hearing loss and tinnitus began during service. In light of the above, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus is not supported by the most probative evidence of record, and thus is not warranted. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMAND The Veteran seeks service connection for a low back disorder, diagnosed as lumbar degenerative disc disease and degenerative joint disease. He contends that his back disability is secondary to his service-connected left knee disability. The Veteran was provided with a VA examination in December 2011 addressing his lumbar spine claim. The December 2011 VA examiner opined that the Veteran's low back disorders were not caused by his left knee disability because the examiner found that the Veteran had mild osteoarthritis in the left knee "without considerable disability" that would give rise to lumbar spine degenerative disc disease and degenerative joint disease. Since then, however, the Veteran has undergone total left knee replacement, indicating that his left knee disability has worsened since the December 2011 VA examination. Thus, a new VA examination should be conducted and a new opinion obtained that considers the Veteran's full medical history. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Additionally, the December 2011 VA examiner did not address whether the Veteran's back condition was aggravated by his service-connected left knee disability pursuant to 38 C.F.R. § 3.310. This is significant because in El-Amin v. Shinseki, 26 Vet. App. 136 (2013), the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability. Thus, aggravation should be addressed by the VA examiner on remand. As this matter is being remanded, all outstanding VA medical records should be obtained. Sullivan v. McDonald, 815 F.3d 786 (2016). Moreover, the Veteran should be given an opportunity to identify any private medical records he would like considered in connection with his appeal. 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal. 2. After completing the above development, schedule the Veteran for an appropriate VA examination to determine the current nature, onset and etiology of his lumbar spine disorders. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. After a review of the claims file, including the lay statements provided by the Veteran, the examiner should state whether it is at least as likely as not that any of the Veteran's diagnosed lumbar spine disorders (1) had their clinical onset during active service or within one year after his separation from service, (2) are otherwise related to an event, injury or disease incurred in service, (3) are caused by his service-connected left knee disability, or (4) are aggravated by his service-connected left knee disability. The examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. If any opinion requested above cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After completing the above development, including any additional development that may be warranted, readjudicate the appeal. 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. §§ 5109B, 7112 (2012). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs