Citation Nr: 1801178 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-17 555 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for right hip disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to March 1976. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2013 rating decision in which the RO denied service connection for bilateral hearing loss, tinnitus, and a right hip disability. In May 2013, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2014. In April 2017, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. The Board's decisions addressing the claims for service connection for bilateral hearing loss and tinnitus are set forth below. The claim for service connection for a right hip disability is addressed in the remand following the order; this matter is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. The Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 3. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and competent, probative medical and lay evidence on the question of whether the Veteran's bilateral hearing loss had its onset in service is, at least, in relative equipoise. 4. Competent, probative medical opinion evidence indicates that the Veteran's current tinnitus is at least as likely as not proximately due to now service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a), 3.385 (2017). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus, as secondary to now service-connected bilateral hearing loss, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that 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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) 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) (2017). Given the Board's fully favorable decisions on the claims for service connection for bilateral hearing loss and tinnitus, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a chronic disease, such as an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.§§ 1101 , 1111, 1112, 1113, 1137 (2012); 38 C.F.R. § 3.307, 3.309 (2016) . In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss as an organic disease of the nervous system, and therefore a chronic disease subject to presumptive service connection. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. Also, the United States Court of Appeals for Veterans Claims (Court) has held that, with evidence of acoustic trauma, tinnitus is considered an organic disease of the nervous system, falling within the parameters of 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. 38 C.F.R. § 3.303 (b). 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 when 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. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that the provisions of 38 C.F.R. § 3.303 (b) pertaining to the award of service connection on the basis of continuity of symptomatology apply only to chronic diseases as defined in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires: (1) competent evidence of current disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Laypersons, such as the Veteran and his wife, are competent to report on matters observed or within his or her personal knowledge, to include the occurrence of injury, and as to the nature, onset, and continuity of symptoms experienced or observed. See 38 C.F.R. § 3.159 (a)(2) (2017); Charles v. Principi, 16 Vet. App. 370 (2002). Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board, however, retains the discretion to determine the credibility and probative value of all evidence of record, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). I. Hearing Loss Hearing loss is considered to be a disability for VA purposes 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 thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A March 2013 VA audiology examination report reveals that the Veteran has been diagnosed as having bilateral sensorineural and mixed hearing loss as defined by VA. Id. Thus, current hearing loss disability has been established. In this case, the Veteran contends that his current hearing loss is related to exposure to loud noises associated with military weaponry in service. For example, he has reported that he was exposed to loud noises from gunfire and exploding ordinance while training in boot camp, that he was in close proximity to one such explosion, that he experienced diminished hearing immediately following the explosion, that diminished hearing has persisted ever since that time, that he sought treatment for hearing loss within a year of his discharge from service, and that scar tissue was observed in his ears during his initial post-service evaluation. Moreover, his wife reported during the April 2017 hearing that she had known the Veteran for approximately 35 years (i.e., since approximately 1982) and that she had observed him experiencing hearing difficulties ever since they first met (although she was initially unaware that his behavior was due to difficulty hearing). Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. The Veteran's certificate of discharge from service (DD Form 214) reflects that he received the Rifle Marksman Badge. He is competent to report in-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan, 451 F.3d at 1336. Further, there is nothing to explicitly contradict his reports and they are not inconsistent with the evidence of record and the circumstances of his service. As the Board thus finds no reason to question the veracity of his assertions in this regard, the Board finds that his reports of in-service noise exposure are credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154 (2012); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). On the question of medical etiology, the audiologist who conducted the March 2013 VA audiology examination opined that the Veteran's hearing loss was not likely (not "at least as likely as not"/"50 percent probability or greater") caused by or a result of service. She reasoned that there was no decrease in hearing in either ear while on active duty to indicate any damage to the auditory system by noise during that time; rather, the Veteran's hearing actually improved while on active duty. The Board finds, however. that the March 2013 opinion is of limited probative value because it is essentially based solely on the absence of clinical evidence of diminished hearing in service, Notably, the examiner did not acknowledge or discuss the Veteran's reports of diminished hearing immediately following an explosion during training in service and of continuity of symptoms of diminished hearing in the years since service. The Board points out that a medical opinion based solely on the absence of documentation in the record and which does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination) is inadequate. See, e.g., Dalton v. Peake, 21 Vet. App. 23 (2007). The Board acknowledges that there is no evidence of hearing loss as defined by 38 C.F.R. § 3.385 in the Veteran's service treatment records and that some of his auditory thresholds measured during his April 1976 separation examination were better than those measured during his February 1973 entrance examination. Nonetheless, the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Veteran is competent to report continuous hearing loss symptoms in the years since service and his wife is competent to report her observations of the Veteran's symptoms. See Jandreau, 492 F.3d at 1377; see also Buchanan, 451 F.3d at 1337. There is nothing to explicitly contradict these reports . As such, the Board finds that the reports of continuous symptoms of diminished hearing in the years since service are credible. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding any issue material to the determination of a matter, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the competent and probative lay evidence of likely in-service noise exposure that may have resulted in acoustic trauma, and of continuous symptoms of diminished hearing in the years since service, the Board finds that, at the very least, the evidence is relatively evenly balanced on the question of whether the Veteran's current hearing loss had its onset in service. Resolving all reasonable doubt on the in-service injury and medical nexus questions in the Veteran's favor, the Board concludes that the criteria for service connection for the diagnosed bilateral hearing loss are met. II. Tinnitus The March 2013 VA audiology examination report reveals that the Veteran reported that he experienced recurrent tinnitus. Thus, current tinnitus has been demonstrated. Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus, as secondary to now service-connected bilateral hearing loss, is warranted. The audiologist who conducted the March 2013 VA audiology examination opined that the Veteran's tinnitus was likely ("at least as likely as not"/"50 percent probability or greater") a symptom associated with his hearing loss, as tinnitus is known to be a symptom associated with hearing loss. There was no further explanation or rationale provided for this opinion. As explained above, the Board has awarded service connection for bilateral hearing loss. Although the March 2013 opinion is not accompanied by any detailed rationale, it was nonetheless based upon an examination of the Veteran and a review of his medical records and reported history and it supports a conclusion that the Veteran's current tinnitus is caused, at least in part, by his now service-connected hearing loss. Notably, there is no contrary medical opinion indicating that the Veteran's tinnitus was not caused by his hearing loss. Moreover, while the audiologist's opinion is not definitive, it was written in terms sufficient to warrant application of the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107; C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Given the above, and with resolution of all reasonable doubt on the question of whether there exists a medical nexus between current tinnitus and the Veteran's now service-connected hearing loss in the Veteran's favor, the Board concludes that the criteria for secondary service connection for tinnitus are met. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus, as secondary to service-connected bilateral hearing loss, is granted. REMAND The Board's review of the claims file reveals that further action on the remaining claim for service connection for a right hip disability is warranted. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. In this case, a May 2012 VA surgery operative note and a December 2012 VA orthopedic surgery note reflect that the Veteran has been diagnosed as having osteoarthrosis of the right hip and status post right total hip arthroplasty. Thus, competent evidence of a current right hip disability has been demonstrated. The Veteran contends that his right hip disability had its onset in service following a right hip injury. Specifically, he explained during the April 2017 hearing that he injured his hip in service when he fell down a flight of stairs, but that he did not report the injury at the time because he was scheduled to go on leave for the birth of his daughter and he was afraid that he would be drug tested and not permitted to go home. He contends that he has continued to experience right hip symptoms in the years since service. In sum, there is competent evidence of the Veteran's claimed right hip disability, competent evidence of a right hip injury in service, and competent evidence of a continuity of right hip symptomatology in the years since service. Hence, the evidence suggests that the Veteran's current right hip disability may have been incurred in service. Therefore, VA's duty to obtain an examination is triggered. See 38 U.S.C. § 5103A (d); McLendon, supra; 38 C.F.R. § 3.159. Such an examination is needed to obtain a medical opinion as to the nature and etiology of the Veteran's current right hip disability. In light of the above, the AOJ should arrange for the Veteran to undergo VA examination by an appropriate physician to obtain an opinion as to the nature and etiology of his claimed right hip disability. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of his claim. See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate notification and development action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file includes records of the Veteran's treatment from the VA Medical Center (VAMC) in Asheville, North Carolina (dated from October 2011 to March 2013). The earliest VA treatment record in the file is an October 2011 VA orthopedic surgery consultation note which reveals that the Veteran was referred from the VA outpatient clinic (VAOPC) in Hickory, North Carolina for a painful arthritic right hip. Hence, there appears to be additional VA treatment records that have not yet been obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the above-noted facilities all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159 (c) as regards requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining matter on appeal (particularly as regards any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining matter on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, to particularly include all records from the VAMC in Asheville, North Carolina (dated from March 1976 through October 2011 and since March 2013) and all records from the VAOPC in Hickory, North Carolina (dated since March 1976). Follow the procedures set forth in 38 C.F.R. § 3.159 (c) (2017) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining matter on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo VA examination, by an appropriate physician, to obtain information as the nature and etiology of current right hip disability(ies). The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on a review of all pertinent lay and medical evidence, the examiner should clearly identify any right hip disability(ies) present at any point since approximately May 2012 (even if now asymptomatic or resolved): With respect to each right hip disability identified, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the disability (a) had its onset during service; (b) if arthritis, was manifested to a compensable degree within the first post-service year; (c) is related to the Veteran's reported right hip injury in service when he fell down a flight of stairs; or (d) is otherwise medically-related to the Veteran's service. In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence of record and all lay assertions-to include the Veteran's reports of a right hip injury in service when he fell down a flight of stairs and of a continuity of right hip symptomatology in the years since service. Notably, the absence of evidence of injury or of diagnosis of and/or treatment for right hip problems in the Veteran's service treatment records should not, alone, serve as the sole basis for a negative opinion. In this regard, the examiner is advised that the Veteran is competent to report a right hip injury in service, his symptoms, and history, and that lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim for service connection for a right hip disability in light of all pertinent evidence (to particularly include that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication in April 2014), and all legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental SOC (SSOC) that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs