Citation Nr: 1804335 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-14 840 ) 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 bilateral tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Air Force from July 1964 to July 1968 and from July 1971 to July 1975. He had additional Air National Guard service from October 1975 to July 1988, with periods of ACDUTRA and INACDUTRA contained in the record. This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The October 2012 rating decision addressed several issues; the Veteran submitted a timely notice of disagreement with the denials of service connection for bilateral hearing loss and tinnitus only. These issues were previously before the Board in October 2015. The Board remanded so that additional records could be obtained, attempts could be made to obtain outstanding service treatment records, and the Veteran could be afforded a VA examination. These directives have been completed. FINDINGS OF FACT 1. Due to the Veteran's military occupational specialty (MOS) of a Navigation Aids Repairman, it was highly probable that he was exposed to hazardous noise in service. Therefore, hazardous noise exposure during service is conceded. 2. Resolving reasonable doubt in the Veteran's favor his bilateral hearing loss is related to military service. 3. Resolving reasonable doubt in the Veteran's favor his bilateral tinnitus is related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3,309, 3.385 (2016). 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. § 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter provided in July 2012. See 38 U.S.C. § 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also met its duty to assist the Veteran in the development of the claims. The record contains his limited VA treatment records, available service treatment records, and statements. The Veteran has not provided releases for VA to obtain any private treatment records. The Board notes that the Veteran's full service treatment records are not available, and the record contains attempts to obtain these records and memoranda of unavailability. The record currently contains his service treatment records from June 1975 to September 1987. It also includes some records from as early as January 1966, but does not include an entrance or separation examinations from his two periods of active Air Force service. His earliest medical history and medical examination is from June 1975, and his newest is from October 1985. The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Additionally, the Veteran was afforded VA examination in September 2012 and March 2016. The examination reports included pertinent current findings of hearing loss and tinnitus, included statements provided by the Veteran during interview, and included nexus opinions with supporting rationales. Therefore, the Board finds the examination to be adequate for appellate review. The Board notes that in the September 2017 brief, the Veteran's representative requested that the Veteran be "given time" to provide additional statements regarding the jobs he performed in service to support his claim for hearing loss and tinnitus. The representative did not request a certain number of days. Additionally, the Veteran was given additional time to provide statements following the October 2015 remand. And, most importantly, VA concedes that the Veteran was exposed to hazardous noise in service. No additional statements are necessary regarding the exposure to in-service noise. The representative additionally indicated the Veteran would provide additional statements regarding his onset of hearing loss and tinnitus in service. The Board notes that currently the record contains such statements from the Veteran. The conflicting statements provided by the Veteran/representative and that provided to the VA examiner will be addressed below. Given that the Board is granting the claims, providing the Veteran additional time would be fruitless. The Veteran's representative additionally requested a "new hearing test be conducted." The representative did not indicate a reason for an additional examination, and did not allege that the examination report was inadequate or contained factually inaccurate details. As the Veteran was provided a VA examination in 2016, and the examination appears to be adequate, with testing, interview, and a nexus opinion supported by a rationale, the Board does not see fit to remand for an additional examination. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also 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). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is not included in 38 C.F.R. § 3.309, although it is considered a totally subjective disability. Hearing loss is not specifically listed in 38 C.F.R. § 3.309, but the Board has considered it to be an "other organic disease of the nervous system," and as such, the Board will address the Veteran's representative's claims of continuity of symptomatology. To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). Factual Background and Analysis The Veteran is seeking service connection for bilateral hearing loss and tinnitus. As noted above, the Veteran's MOS in service was as Navigation Aids Repairman according to his DD 214. Duty MOS Noise Exposure Listing lists Navigation MOSs as having a high probability of exposure to hazardous noise. The Veteran's available service treatment records additionally include hearing conservation worksheets, which indicate that he was exposed to hazardous noise in service. Again, as noted above, VA concedes that the Veteran was exposed to hazardous noise in service. The Veteran contends that this exposure to hazardous noise in service resulted in his current bilateral hearing loss and tinnitus. On his August 2011 claim, the Veteran reported that his hearing loss and tinnitus began in roughly 1972 or 1973, during his second period of active service. The Veteran's complete service treatment records are not available. His available service treatment records include the earliest hearing conservation data from December 1967, where the Veteran was noted to primarily work in the "hanger shop." At that time his hearing was "good." 1000 Hz 2000 Hz 3000 Hz 4000 Hz right 0 dB 5 dB 0 dB 0 dB left 0 dB 0 dB 0 dB 0 dB As the Veteran's full service treatment records are not available, the record does not contain his entrance examination from 1964. As such, the Veteran is considered to have entered service "sound." Additionally, the available service treatment records span both his active service in the U.S. Air Force and his service in the Air National Guard, but do not include a final evaluation from 1988 before he retired. The latest audiogram in the record is from October 1985. It is from a period medical examination. His ears were noted to be normal on evaluation. There was no indication that he had a hearing loss disability at the time. 1000 Hz 2000 Hz 3000 Hz 4000 Hz right 5 dB 10 dB 0 dB 5 dB left 10 dB 10 dB 0 dB 0 dB The Veteran's worst readings, to a lay person's eyes, are from October 1978 hearing conservation form. He was working with navigations systems as a repairman. He used hearing protection of "plugs." 1000 Hz 2000 Hz 3000 Hz 4000 Hz right 10 dB 10 dB 5 dB 0 dB left 15 dB 15 dB 5 dB 5 dB In the available records, the Veteran did not complain of hearing loss or tinnitus. During his October 1985 periodic medical history, the Veteran denied hearing loss. There are few relevant post-service records. In September 2011, The Veteran initially sought treatment for his hearing loss with VA. He reported intermittent bilateral tinnitus since service. He was diagnosed with bilateral sensorineural hearing loss and tinnitus. In September 2012, the Veteran was afforded a VA examination. His puretone results showed that he had hearing loss for VA purposes. He also reported tinnitus. Regarding his tinnitus, the report listed that the Veteran stated he did not know the date and circumstances of the onset of his tinnitus, it "occurred randomly and lasted a short duration." The examiner provided a negative nexus opinion relating to the Veteran's tinnitus because the Veteran did not "correlate the tinnitus to military noise exposure. The short duration random tinnitus described is not consistent with tinnitus secondary to noise exposure." The examiner also noted that there was no hearing loss during military service to support his claim. "Considering all the evidence, the examiner cannot be 50 percent or more certain that tinnitus was caused by military noise." The examiner did not mark a response regarding whether his hearing loss was due to service or not. The examiner did remark that the Veteran "had combat service and was given the benefit of the doubt, but that there was evidence that he did not suffer hearing loss during military service." The examiner also remarked that the Veteran had "normal auditory thresholds at entrance and separation and there was not a significant decrease in thresholds during military service. Hearing loss during military service has been ruled out." The Board notes that the Veteran's entrance and separation audiograms are both not of record. It is possible the examiner is remarking on the available records, as the in-service physicians did not indicate that the Veteran had hearing loss based on those results; however, it is an error to say the record contains his entrance and separation evaluations. On his October 2012 notice of disagreement, the Veteran's representative noted that hearing loss need not manifest during service in order for an award of service connection to be granted. Hensley v. Brown 5 Vet. App. 155, 164 (1993). The representative noted that the Veteran had asserted that he noticed difficulty hearing in service and continued to experience symptoms of hearing loss as discharge. The representative argued that the Veteran had in-service acoustic trauma and competent complaints of continuing hearing problems since service. The representative also argued that the Veteran had reported intermittent tinnitus since service, and that there was no reason to conclude that his statement was not credible regarding the onset. In October 2015, the Board remanded the claim, in part, so that an additional VA examination could be conducted. In March 2016, the Veteran was again diagnosed with sensorineural hearing loss and tinnitus. The examiner provided a negative nexus opinion regarding the Veteran's hearing loss. She stated that the Veteran had combat service, but that he did not suffer hearing loss or significant decrease in auditory thresholds during active service or reserve service. "He had normal auditory thresholds throughout all active and reserve duty." Hearing loss was not identified in active or reserve service. This is consistent with the "Veteran's history of onset of hearing loss approximately 10 years ago." The examiner again incorrectly noted that the Veteran had normal auditory thresholds "at separation" and a standard threshold shift did not occur for either ear when "comparing entrance and separation evaluations." The examiner cited that the Institute of Medicine (2005) concluded that there was insufficient scientific evidence for delayed-onset hearing loss secondary to military noise exposure. The available anatomical and physiologic evidence suggests that delayed post-exposure noise induced hearing loss is not likely. The examiner noted that "if hearing was normal on discharge and there was no permanent significant threshold shift greater than normal progression during service, then there is no basis on which to conclude that a current hearing loss is causally related to military service, including noise exposure." Regarding his tinnitus, the examination report included that the Veteran reported his tinnitus began 10 years prior (1996), at roughly the "same timeframe as hearing loss." The examiner provided a negative nexus opinion, and noted the Veteran did not correlate his tinnitus to military noise exposure, but to the onset of hearing loss. Additionally, his tinnitus was reported as short in duration and random in occurrence, which is not typical of tinnitus secondary to noise exposure. A May 2016 memorandum from the Records Management Center again noted that the Veteran's remaining service treatment records were unavailable. Additionally, the Veteran's dates of ACDUTRA and INACDUTRA for his National Guard service were added to the claims file in 2016. In February 2017, the March 2016 VA examiner reviewed the new evidence that had been added to the record, essentially the Veteran's ACDUTRA and INACDUTRA dates. She stated that her medical opinion had not changed. The Veteran "had normal auditory thresholds throughout all periods of active and inactive service, without significant decrease beyond normal progression and test-retest variability. There were multiple auditory threshold exams in service and none showed hearing loss during any period of service and no significant decrease beyond normal progression." Here, the Veteran has current diagnoses of bilateral tinnitus and bilateral hearing loss (for VA disability purposes). VA has also conceded that he had an "in-service injury" in that he was exposed to hazardous noise in service. In order to grant his claims for service connection, the record needs to contain a nexus between his in-service injury and his current disabilities. Obviously, the two medical opinions of record are negative. However, the Veteran has provided credible lay statements of ongoing hearing loss and tinnitus from service. He stated in 2011 that his tinnitus began in service, and stated on his claim that his hearing loss and tinnitus began in 1972 or 1973. To the extent that the examination reports indicate that the Veteran reported his hearing loss and tinnitus did not begin until roughly 1996, but Board will provide the Veteran the benefit of the doubt that this is in error, as he reported both before and after the examinations that his hearing loss and tinnitus began during service. The negative nexus opinions of record are based on the examiner's belief that the Veteran reported his hearing loss and tinnitus began in roughly 1996, and on the available audiograms in service not showing a significant decrease in hearing loss beyond the normal progression. The examiner also cited a medical treatise that indicated that late onset hearing loss could not be positively associated with in-service noise exposure. The Board finds in this decision that the Veteran's statements that he first noticed his hearing loss and tinnitus in service are credible, which removes one of the examiner's reasons for providing a negative nexus opinion. The Board also notes that in both examination reports the examiner pointed out that the Veteran's service treatment records showed normal hearing at "entrance and separation" and that he had normal hearing "throughout" active and national guard service" and that he had a normal audiogram at "separation." All of these statements are not factually accurate to the record, as the Veteran's service treatment are incomplete and do not contain his entrance or separation examination, or (likely) many of his records for his periods of service. Indeed, his service treatment records for his last year of National Guard service are missing. Given the totality of the record, the Board is generously giving the Veteran the benefit of the doubt that his hearing loss and tinnitus began in service and have continued to the present day. Tinnitus is not listed as a "chronic" disability under 38 C.F.R. § 3.309, but it is a wholly subjective disability to which the Veteran has the competency to report when it began. To the extent that the examiner has indicated that his symptoms of tinnitus are unusual for noise-induced tinnitus, the examiner did indicate that his tinnitus was likely tied to his hearing loss. Hearing loss can be considered a "chronic" disability under 38 C.F.R. § 3.309 if the Board considers it an "other organic disease of the nervous system." As such, the Board accepts the Veteran's contentions of continuity of symptomatology regarding his hearing loss. Therefore, with the benefit of the doubt applied, entitlement to service connection for bilateral hearing loss and bilateral tinnitus are warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. ____________________________________________ G.A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs