Citation Nr: 1802755 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-04 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for vertigo, to include as secondary to bilateral hearing loss. 3. Entitlement to an initial compensable rating for service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1951 to September 1974. This appeal is before the Board of Veterans' Appeals (Board) from May 2010 and July 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The May 2010 rating decision, in pertinent part, granted service connection for bilateral hearing loss and assigned a noncompensable initial rating, effective July 28, 2009; and denied service connection for tinnitus. In July 2010, the RO denied service connection for vertigo. In March 2015, the Board remanded all three issues for further evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). In this case, the AOJ substantially complied with the Board's remand instructions by scheduling a Travel Board hearing for December 6, 2016, and again on March 27, 2017, upon receiving the Veteran's request to reschedule. However, on March 23, 2017, the Veteran submitted a written request to cancel the March 2017 hearing. 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 issues of service connection for vertigo and for an initial compensable rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The weight of the evidence does not show that the Veteran's tinnitus was incurred in or resulted from his active duty service, or manifested within one year from the date of separation. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matter In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection Claim for Tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Pertinent here, where there is evidence of acoustic trauma, tinnitus is considered a "chronic disease" under 38 C.F.R. § 3.309 (a) for presumptive service connection purposes. See Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. 3.309 (a) include tinnitus as organic disease of the nervous system). Therefore 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and a certain chronic disease, such as an organic disease of the nervous system (i.e., tinnitus), becomes manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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.A. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, service treatment records (STRs) include continuous examination reports, including at separation, reflecting the Veteran's denials of ear trouble and/or running ears, and normal clinical evaluations of the ears and drums. Private treatment records from March 2005 to April 2005 reflect the Veteran's report of longstanding bilateral tinnitus, significant in-service noise exposure, and a diagnosis of unspecified tinnitus. In July 2009, the Veteran stated that he was a pilot and crewmember during the Vietnam War where he worked on turbo engines, which he claimed caused his tinnitus. In October 2009, the Veteran stated that he began experiencing random episodes of tinnitus subsequent to separation, which progressively impacted his ability to verbally and orally interact with others. In a separate October 2009 statement, the Veteran reported that he was a radar mechanic on the flightline, aviation cadet (aircrew navigator), navigator (aircrew), pilot, and in aircraft maintenance during service, which involved aircraft or maintenance duties with exposure to high decibel noise levels. He specifically noted an incident in 1978 when he was flying at 28,000 feet over Alaska when a windshield shattered and rapid decompression took place; he immediately went on oxygen but had a ringing in his ears as the plane went into an emergency descent in order to stabilize. Additionally, he stated that his lay understanding was that his tinnitus was "'probably' due to an inner ear problem resulting from severe vestibular damage - primarily in the left ear." He also reported that he began suffering from tinnitus in 1980 after separation, and that comprehensive tests revealed that he had sustained severe vestibular damage, particularly in his left ear, which could be associated with exposure to high levels of noise over a 24-year period. Although his tinnitus was relatively benign at first, it worsened in the early 2000s. An October 2009 VA examination report reflects review of the Veteran's claims file and the Veteran's reports of constant bilateral tinnitus with an onset around 1992 or 1993 and no use of hearing protection during service. The VA examiner noted that there were no complaints of tinnitus in the Veteran's medical records and that the Veteran's subjective onset of tinnitus was many years after separation from service. As such, she opined that the Veteran's tinnitus was less likely than not related to service. In January 2010, the Veteran stated that he experienced tinnitus since 1974. He reported that during his 24 years with the Air Force, he was exposed to extremely high levels of noise from various sources, to include flightline exposure to jet and turboprop engines, flying as a pilot or crewmember in old aircrafts for prolonged periods of time (up to 24 hours at a time) with constant droning or high pitch of the engines, as a gunner on an aircraft for training and on the ground, as a pilot in Vietnam at which time he was exposed to high noise levels from miniguns, and constant mortar and rocket attacks while on the ground in Vietnam. A June 2010 VA examination report reflects review of the Veteran's claims file, which was negative for complaints of tinnitus during service and at separation. The Veteran was diagnosed with bilateral tinnitus. The VA examiner agreed with the October 2009 VA audiologist's opinion regarding tinnitus. Based upon the provide medical evidence of record, the Board finds that the Veteran's tinnitus is not etiologically related to his military service. As an initial matter, the Veteran has current complaints of tinnitus. A veteran satisfies the current disability requirement if he has such disability at any time during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the Board acknowledges the Veteran's contentions that he was exposed to hazardous noise while in service. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Veteran is competent to establish that he experienced noise exposure while serving as a pilot and crewmember. Additionally, the Veteran would have been exposed to hazardous noise based on his MOS as an aircraft maintenance staff officer. As there is no evidence to the contrary in the record, the Board finds the Veteran's contentions regarding noise exposure to be credible and that the Veteran experienced some level of noise exposure while in service. However, after reviewing the Veteran's claims file and considering his statements of onset and in-service noise exposure, both the October 2009 and June 2010 VA examiners opined that the Veteran's tinnitus was less likely than not related to active duty service. The Board finds the October 2009 and June 2010 VA opinions adequate and probative as to the etiology of the Veteran's tinnitus. The Board acknowledges the Veteran's contentions that his tinnitus is related to in-service noise exposure. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, while the Veteran is competent to report his symptoms of tinnitus, he is not competent to make such a determination concerning etiology, which is medical in nature. See Jandreau, 492 F.3d at 1372. As such, the Board finds the Veteran's statements regarding etiology to have no probative value. Moreover, the Veteran's reports of the onset of tinnitus have been inconsistent and contradictory. In his own statements, he reported an onset of tinnitus years after separation from service, specifically in 1980 and 1992 or 1993. It was not years later in January 2010 that the Veteran reported an onset of 1974, the year of separation. Additionally, both STRs and post-service treatment records reveal no complaints, findings, treatments, or diagnoses of tinnitus until March 2005. In light of the evidence provided by the Veteran, the Board finds that the weight of the evidence does not show that the Veteran had tinnitus during service or for many years thereafter. In fact, the Veteran does not complain about his tinnitus until March 2005, 31 years after separation from service. While the Board acknowledges that tinnitus is subjective, it finds that the Veteran's statement that he has had chronic tinnitus since service is not credible. The Board makes no judgment as to whether the Veteran's lack of credibility with respect to his statements is the result of impaired memory, exaggerations of the facts, or deceit. However, the stark inconsistencies alone are sufficient to render the statements of no evidentiary weight regardless of the underlying reasons for the inconsistencies. As a result, service connection for tinnitus is not warranted under a direct or presumptive basis, or by continuity of symptomatology. 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, supra. Therefore, the evidence weighs against a finding that tinnitus began during service, is related to in-service noise exposure, or is related to service in any other way. Accordingly, service connection for tinnitus must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to service connection for tinnitus is denied. REMAND Remand is necessary for additional development, specifically for VA examinations. The Veteran contends that his vertigo is not only directly related to his active duty service, but also, in the alternative, secondary to his tinnitus and service-connected bilateral hearing loss. Unfortunately, although the June 2010 VA examiner provided an opinion, he merely discussed any possible relationship with in-service acoustic trauma and whether it was "due to" his bilateral hearing loss, and did not address whether the Veteran's vertigo was aggravated by the Veteran's service-connected hearing loss. Additionally, the VA examiner failed to address the August 1951 report of in-service dizziness. Furthermore, it is unclear whether the Veteran has a current diagnosis of Meniere's syndrome. As such, a VA examination should be obtained in order to properly evaluate and diagnose the Veteran's claimed vertigo, and to provide an opinion regarding any such diagnosis and his service or service-connected bilateral hearing loss. Additionally, a new VA examination must be obtained in order to assess the current severity of the Veteran's service-connected bilateral hearing loss. The Veteran was last provided a VA audiology examination for compensation purposes in October 2009. However, VA treatment records from June 2016 and April 2017 reflect the Veteran's complaints of increased bilateral hearing loss and continued difficulty understanding speech from the television and in groups or crowds. Given the indication of a worsening of his bilateral hearing loss, a new examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). 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. Provide the Veteran with a VA examination to determine the nature and etiology of his claimed vertigo. All test and studies deemed necessary shall be performed. The examiner should be provided with the Veteran's claims file, including a copy of this remand. Although a complete review of the record is imperative, attention is called to the following: *The Veteran's August 1951 STR reflecting the Veteran's report of a dizzy spell that he could not break. *STRs including March 1951, March 1952, May 1952, February 1953, December 1953, May 1954, January 1958, September 1960, August 1961, August 1962, August 1963, September 1964, September 1965, August 1966, July 1967, November 1968, July 1969, September 1970, July 1971, August 1972, October 1973, and June 1974 examination reports reflecting normal clinical evaluations of the ears and drums and/or the Veteran's denials of dizziness and ear trouble. *A January 2005 transthoracic echocardiogram and carotid Doppler performed for dizziness and assessment of hypertension. *February 2005 private treatment records reflecting the Veteran's complaint of dizziness and assessment of vertigo. *A March 2005 private treatment record reflecting the Veteran's report of a 20-year history of episodic dizziness, episodes of dizziness that came intermittently during the day and lasted an hour or two, some longstanding right ear fullness, and significant in-service noise exposure; a physical examination revealing normal bilateral tympanic membranes, no air-fluid levels, no retraction, no perforations, and no infections; and an impression of episodic dizziness, possibly related to a vestibular abnormality. *An April 2005 electrocochleography that showed elevated summating potential/action potential ratio in the left ear, which may suggest inner ear fluid imbalance. *October 2009 statements in which the Veteran reported that he began experiencing random episodes of vertigo subsequent to separation, specifically in 1979 or 1980; that he was a radar mechanic on the flightline, aviation cadet (aircrew navigator), navigator (aircrew), pilot, and in aircraft maintenance during service, which involved aircraft or maintenance duties with exposure to high decibel noise levels; an incident in 1978 when he was flying at 28,000 feet over Alaska when a windshield shattered and rapid decompression took place; that his lay understanding was that his vertigo was "'probably' due to an inner ear problem resulting from severe vestibular damage - primarily in the left ear;" that comprehensive tests revealed that he had sustained severe vestibular damage, particularly in his left ear, which could be associated with exposure to high levels of noise over a 24-year period; and that Dr. A.R. could not ascertain the cause of the Veteran's vertigo, but provided a possible cause of Meniere's disease. *A January 2010 statement in which the Veteran reported vertigo since 1974, and high levels of in-service noise exposure from various sources. *A March 2010 statement in which the Veteran contended that his vertigo was secondary to his tinnitus and service-connected bilateral hearing loss. *A June 2010 VA examination report reflecting a severe attack of vertigo in 1979, normal physical examination, Dr. A.R.'s suspicion that the Veteran's dizziness may be caused by Meniere's, the VA examiner's suggestion that another possible cause would be vestibular neornitis, and the examiner's negative opinion. After reviewing the claims file and examining the Veteran, the examiner is asked to address the following: a) Indicate all disorders currently shown involving the Veteran's vertigo. Indicate current diagnosis of vertigo or any disability productive of vertigo. b) For each diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that it had an onset during the Veteran's active service, manifested within one year of separation from service, or was caused by or related to his active duty service, to include his August 1951 dizzy spell. c) For each diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that it is caused or aggravated by, or is otherwise related to, a service-connected disability, to include bilateral hearing loss. The Veteran is currently service-connected for bilateral hearing loss, diabetes mellitus type II, prostate cancer, and urinary frequency. All opinions are to be accompanied by a rationale consistent with the evidence of record. 2. Provide a VA examination by an appropriate medical professional to determine the current severity of the Veteran's bilateral hearing loss. The entire claims file must be provided to the examiner for review. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner should provide an explanation for any conclusions reached. 3. Readjudicate the Veteran's claims for service connection for vertigo and for a higher rating for bilateral hearing loss. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). 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). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs