Citation Nr: 1804485 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-19 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. George, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to November 1967. These claims come before the Board of Veterans' Appeals (Board) on appeal from rating decision issued in September 2010 by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge. The decision below addresses the tinnitus claim. The hearing loss and low back claims are addressed in the remand section following the decision. FINDING OF FACT The Veteran's tinnitus onset during service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis The Veteran has a diagnosis of tinnitus. A July 2009 VA treatment record notes the Veteran's report that tinnitus began in service. At the time of this examination, the Veteran had not yet filed a claim of service connection for tinnitus. At an August 2010 VA examination, tinnitus was described as bilateral, constant, and severe with sounds changing in type and pitch. When encountering noise at work or in recreation, the Veteran reported wearing hearing protection. The August 2010 examiner opined that tinnitus was less likely than not related to service because there was no complaints of ear problems at separation and the Veteran has other medical conditions which can contribute to hearing loss (see case history). This explanation is insufficient as it does not connect a specific medical condition as the cause of the Veteran's hearing loss. From the Veteran's May 2014 substantive appeal and his May 2017 Board hearing testimony, the Board has gathered the following. The Veteran served as a gunnersmate responsible for loading the 5 inch guns with ammunition. To performing this duty, he sat near the gun when the gun was fired and was not afforded hearing protection. During service, he began to hear a hissing sound which has become louder over time and, he claims, has decreased his hearing 30 percent. He asserted that this is the cause of his tinnitus. Starting in 1969, he owned his own upholstery business from his garage for 20 years after service. He made seats for boats and did not work in large-scale upholstery manufacturing. Thus, he used a saw a few times per week as needed rather than 40 hours per week. When using the saw, which he bought himself, he used the hearing protection that came with the saw and, while he worked in upholstery for 20 years, he only used the saw for 5 or 6. In 1974, when he was able to obtain health insurance, he saw a doctor regarding his hearing. That doctor told him that the hissing sound he was hearing was tinnitus. A layperson, such as the Veteran, is able to opine as to the existence of a condition like tinnitus, the diagnosis of which is based on the subjective report of the perception of sound by a ringing, hissing, or other distracting sound. See Charles v. Principi, 16 Vet. App. 370 (2002). Because the Veteran's reports have been consistent, thorough, and detailed, and because the Veteran's duties during service regularly exposed him to loud noise, the Board finds no reason to doubt the Veteran's statements as to the onset of his tinnitus. Also of record is a June 2008 private treatment record form Dr. Tachibana, the Veteran's private doctor, notes that tinnitus had been audible over slight noise for six years. This is perhaps consistent with the Veteran's report of his tinnitus becoming louder in recent years. Finally, in February 2010, Dr. Tachibana submitted an opinion stating that the Veteran's tinnitus resulted from being required to load 75 pound artillery shells and fire a 5 inch deck gun with no hearing protection. While not particularly thorough, and without stating whether the Board is accepting or rejecting this opinion for other claims, Dr. Tachibana's opinion is consistent with the Veteran's reports as to onset of the hissing in his ears. Therefore, resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's currently-diagnosed tinnitus had its onset in service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. REMAND It is necessary to remand both of the remaining claims. For the hearing loss claim, a new opinion is required. For the low back claim, the Veteran has not yet been afforded a VA examination, and a medical opinion has not yet been requested. Additionally, service personnel records (SPRs) should be obtained. Hearing Loss At the August 2010 VA examination, the examiner opined that hearing loss was less likely than not related to service because there was no complaints of ear problems at separation and the Veteran has other medical conditions which can contribute to hearing loss (see case history). This explanation is insufficient as it does not connect a specific medical condition as the cause of the Veteran's hearing loss. Therefore, a new medical opinion is being requested. A brief description of relevant evidence is provided to aid the examiner on remand. At his May 1965 entrance examination, the Veteran had normal hearing. Whisper test are 15/15 bilaterally for his October 1967 separation examination. After service, in June 2008, Dr. Tachibana noted mild hearing loss that was constant and without significant fluctuation. At a June 2009 VA appointment, the Veteran stated that he had been experiencing hearing loss for many years. In February 2010, Dr. Tachibana submitted an opinion stating that the Veteran's hearing loss resulted from being required to load 75 pound artillery shells and fire a 5 inch deck gun with no hearing protection. The opinion is not particularly. At the August 2010 VA examination, audiological testing revealed the following thresholds: HERTZ Aug. 2010 500 1000 2000 3000 4000 RIGHT 20 25 40 55 60 LEFT 25 20 35 60 60 Speech discrimination scores using the Maryland CNC wordlist were 94 percent bilaterally. This constitutes hearing loss impairment for VA purposes. 38 C.F.R. § 3.385. Post-service noise exposure was noted in his occupation in upholstery, during which the Veteran used a saw a few times per week as needed and wore hearing protection. Further, the Veteran had recreational noise exposure through occasional range shooting during which he wore hearing protection. Right ear hearing loss was described as mild to severe and left side hearing loss was described as mild to moderately severe. It was noted that there were no effects on daily activities, though a VA treatment record from June 2009 notes that hearing loss causes the Veteran to have difficulty hearing other speak, even when others are talking at a normal volume. The Veteran further described his noise exposure in his May 2014 substantive appeal and his May 2017 Board hearing testimony. The Veteran served as a gunnersmate responsible for loading the 5 inch guns with ammunition. To performing this duty, he sat near the gun when the gun was fired and was not afforded hearing protection. He claims that his hearing has decreased 30 percent and asserts that in-service noise exposure is the result of his hearing loss. Starting in 1969, he owned his own upholstery business from his garage for 20 years after service. He made seats for boats and did not work in large-scale upholstery manufacturing. Thus, he used a saw a few times per week as needed rather than 40 hours per week. When using the saw, which he bought himself, he used the hearing protection that came with the saw and, while he worked in upholstery for 20 years, he only used the saw for 5 or 6. Based on this, and any other information of record, a new medical opinion as to the etiology of the Veteran's hearing loss should be obtained. Low Back Disorder VA is to afford a veteran an examination of a claimed condition when there is a current diagnosis or persistent symptoms thereof, an indication that in-service event or injury may be related to the current diagnosis or persistent symptoms thereof, and no examination has yet been conducted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has varying diagnoses for a low back disorder. A July 2005 treatment record from Dr. Tachibana notes low back pain due to degenerative disease with some nerve compression. Another record dates July 2005 notes multilevel broad-based disc diffusion with encroachment on the central canal greatest at L3-4, but present from L2-3 to L5-S1. This has been accepted as the current diagnosis for the low back disorder. The Veteran has stated that at age 19, when he was approximately 125 pounds and 5 feet, 5 inches tall, he was responsible for loading 74 pound ammunition. He notes that a few times ammunition fell on him when the ship hit a wave. As a result, he was injured in the face, teeth, groin, and leg and had a lacerated lip. He has noted this to convey how heavy the ammunition was, not to note the cause of a particular injury. He stated that he was not encouraged to complain about his aches and pains and, when he did, he was given aspirin and sent back to work. He claims this heavy lifting caused his current back problems. Finally, in February 2010, Dr. Tachibana submitted an opinion stating that the Veteran's chronic back pain resulted from being required to load 75 pound artillery shells and fire a 5 inch deck gun with no hearing protection. While the opinion is not particularly thorough, it is enough to indicate that the Veteran's heavy lifting during service may have caused his current back problems under the McLendon standard. As noted above, the Veteran has not yet been afforded a VA examination of his low back disorder, and a medical opinion has not yet been obtained. Thus, under McLendon, a remand is necessary for an examination and medical opinion to determine the etiology of the low back disorders. Records Finally, the Veteran has stated that he was on light duty while stationed in Guantanamo Bay. SPRs have not been associated with the claims file to confirm this, and service treatment records (STRs) do not clearly show a recommendation for light duty during this time period. Therefore, the Veteran's SPRs should be associated with the claims file. Accordingly, these issues are REMANDED for the following actions: 1. Obtain the Veteran's SPRs. 2. Thereafter, afford the Veteran an examination of his low back by the appropriate clinician. After examination and review of the entire claims file, the examiner should: Identify the Veteran's current low back disorders Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any identified low back disorder had its onset in service, onset within one year of service if arthritis, or is otherwise relate to service. A complete rationale should be provided for any opinion rendered. Relevant lay statements of record as to the Veteran's symptoms during and since service should be considered. 3. Also, obtain a medical opinion regarding the etiology of the Veteran's hearing loss from a state-licensed audiologist. After reviewing the entire claims file, the examiner should opine as to: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hearing loss had its onset during service, within one year of service, or is otherwise related to service. A complete rationale should be provided for any opinion rendered. Relevant lay statements of record as to the Veteran's symptoms during and after service should be considered. 4. Finally, readjudicate the claims remaining on appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs