Citation Nr: 1803260 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-34 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial evaluation higher than 10 percent for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from August 1970 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied service connection for bilateral hearing loss. This decision also granted service connection for tinnitus and assigned the maximum 10 percent evaluation, effective August 24, 2011. In October 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the proceeding is of record. At the hearing, the Veteran waived Agency of Original Jurisdiction (AOJ) consideration of all evidence added to the file since the October 2013 Statement of the Case (SOC). FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the Veteran's bilateral hearing loss is etiologically related to his active military service. 2. The Veteran's service-connected bilateral tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized whether it is perceived in one ear or both ears; factors warranting extra-schedular consideration are not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for an evaluation higher than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.87, DC 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this decision, the Board is granting service connection for bilateral hearing loss, which represents a complete grant of this specific benefit sought on appeal. Additionally, because the law is dispositive in the appeal of the claim for increase for tinnitus, the Board finds that the provisions of the VCAA are not applicable. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary. Id. When a chronic disease is shown in service, sufficient 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, 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. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 to the claimant. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. III. Service Connection for Bilateral Hearing Loss The Veteran is claiming entitlement to service connection for bilateral hearing loss, which he contends began as a result of repeated exposure to loud noise during his service and consequent injury (acoustic trauma). Having carefully considered this claim, in light of the evidence of record and the applicable law, the Board concludes that the evidence is at least in equipoise with respect to whether the Veteran's hearing loss is etiologically related to service. Therefore, this claim will be granted. The Board will begin by addressing direct service connection. The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) 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 scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. In this case, the medical evidence confirms that the Veteran has sufficient hearing loss to be considered an actual ratable disability as defined by VA regulation. 38 C.F.R. § 3.385. Moreover, during audiological evaluation, the Veteran reported exposure to rocket launchers, machine gun fire, mortar rounds, aircrafts, tanks, and small arms fire, which the Board accepts as credible evidence of noise exposure in service. The Veteran's DD Form 214 shows that he served as an artillery scout observer, which is considered to have a high probable risk of exposure to high levels of noise and acoustic trauma. Based on evidence of service in a military occupation consistent with exposure to high levels of noise and acoustic trauma, the remaining question before the Board is whether the Veteran's currently diagnosed hearing loss disability is related to his active military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The service treatment records (STRs) contain audiometric findings suggestive of hearing loss with an onset during service. At the time of the Veteran's June 1970 enlistment exam, no defects were specified with respect to his ears, and audiometric findings were within normal limits with no indication of hearing loss. An STR dated in March 1971 shows that the Veteran complained of ringing in his right ear and a diagnosis of tinnitus and hearing loss was documented. An STR dated in April 1971 indicates that the Veteran has high frequency hearing loss in the right ear that was first noticed in November 1970. An STR dated in June 1971 again documents hearing loss complaints. Similarly, the June 1972 discharge exam identifies high frequency hearing loss in the right ear with documented puretone thresholds of 70 decibels (dB) at 3000 Hz and 80 dB at 4000 Hz, which indicates some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (noting the threshold for normal hearing is from 0 to 20 dB and, therefore, higher threshold levels indicate some degree of hearing loss-even if not sufficient hearing loss to be considered an actual ratable disability according to 38 C.F.R. § 3.385). The Veteran was afforded a VA audiological examination in November 2011, but the examiner indicated that rendering a diagnosis of hearing loss was not possible due to poor test reliability in the right ear. On the other hand, the examiner was able to confirm a diagnosis of constant tinnitus. In this case, the Board finds that any test results from this examination are not valid for adjudication purposes. The Veteran was afforded another VA audiological examination in August 2013, however the same examiner, again, indicated that the puretone test results are not valid for rating purposes due to the test reliability during the right ear speech recognition test "not being good". The examiner stated that there were significant thresholds differences between both ears. However, the examiner was able to confirm a diagnosis of tinnitus. In this case, the Board again finds that any test results from this examination are not valid for adjudication purposes. The Veteran was afforded a VA audiological examination in October 2014, but the examination report reflects that the audio evaluation was deemed to have poor reliability bilaterally. The examiner noted that the "Veteran was difficult-to-test," due to "inconsistent responses to speech discrimination measures." As a result, the examiner indicated that due to the invalid evaluation, no credible etiological, medical diagnostic or disability rating opinion could be provided. The examiner was able to confirm a diagnosis of bilateral tinnitus. In this case, the Board finds that test results from this examination are not valid for adjudication purposes. More recently, the Veteran underwent a private audiological examination in October 2017. The private audiologist found a diagnosis of bilateral hearing loss and tinnitus. After review of the pertinent evidence, including the Veteran's lay statements and his STRs, the audiologist opined that the bilateral hearing loss is at least as likely as not (50% probability or greater) caused by or a result of an event in military service. In support of this conclusion, the audiologist addressed the Veteran's separation exam that shows a significant decrease in hearing bilaterally and concluded that these findings supports his report of high levels of noise exposure during service and an MOS with a high probability of noise exposure. In light of the foregoing reasons, the evidence supporting the claim is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim. Therefore, the Board is of the opinion that the point of equipoise has been reached in this appeal. The Veteran was exposed to loud heavy artillery and weapons fire noises in service. The lay and medical evidence shows that he now has bilateral hearing loss, as well as is in receipt of service connection for bilateral tinnitus. The Board recognizes that the Veteran is competent to report symptoms that he perceives through his own sense, but these reports must be weighed against the medical evidence of record. See Layno v. Brown, 6 Vet. App. at 469. While the VA audiological examinations of record were unable to provide a diagnosis or etiological opinion due to possible inconsistencies, the remaining medical evidence of record shows a positive connection between the Veteran's documented in-service acoustic trauma and his current hearing related impairments. Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim. However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, as here, at worst evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). In the Board's opinion, the evidence supporting a finding that the Veteran's current hearing loss is etiologically related to his military service is at least in equipoise with that against the claim. Therefore, the Veteran is entitled to service connection for bilateral hearing loss. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Increased Evaluation for Tinnitus When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. If the evidence for versus against a claim is in equipoise, then the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4. These percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to him. The Veteran's service-connected bilateral tinnitus is currently evaluated as 10 percent disabling, which is the maximum evaluation available under Diagnostic Code 6260. See 38 C.F.R. § 4.87; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and DC 6260, limits a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral); VAOPGCPREC 2-2003 (DC 6260 authorizes a single schedular 10 percent disability rating for tinnitus, regardless of whether the tinnitus is perceived as unilateral or bilateral). Where, as here, there is a lack of entitlement under the law, the claim for a schedular evaluation higher than 10 percent, to include separate schedular ratings, for bilateral tinnitus is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Regarding extraschedular consideration, in this case, the schedular evaluation is adequate. The symptoms of the Veteran's disability (constant ringing in the ears) have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The Board is cognizant of the ruling in Rice v. Shinseki, which held that a claim for a total disability rating based on individual unemployability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, is part of a claim for an increased rating. 22 Vet. App. 447 (2009). In this case, neither the VA audiological examiners, nor the private audiologist reported the Veteran's tinnitus had any significant functional impact. There was no indication by any examiner, or the Veteran, that he is unemployable due to his tinnitus. Accordingly, the Board concludes a claim for a TDIU has not been raised by the record. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to an initial evaluation for tinnitus higher than 10 percent is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs