Citation Nr: 1805848 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 15-27 513A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to service connection for irregular heartbeat. 4. Entitlement to service connection for bilateral leg condition (claimed as tremors, pain and numbness in both legs). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION 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 Veteran served on active duty from September 1950 to November 1951. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama . In an August 2015 VA Form-9, the Veteran requested a BVA Travel Board hearing. However, he withdrew this request in November 2016. This appeal was processed using the Veteran's Benefits Management System (VBMS), Caseflow Reader and Legacy Content Manager. FINDINGS OF FACT 1. The evidence of record reveals that the Veteran's bilateral hearing loss was not shown in service or within one year after discharge from service, nor does it show that the Veteran's bilateral hearing loss is linked to or otherwise a result of the Veteran's service. 2. Tinnitus first manifested many years after the Veteran's discharge from service, and the only medical opinion to address the etiology of his bilateral hearing loss weighs against the claim. 3. The preponderance of the evidence is against finding that the Veteran has an irregular heartbeat disorder that is linked to service or indicates that it is otherwise the result of service. 4. The preponderance of the evidence is against finding that the Veteran has a bilateral leg condition, to include essential and other specified forms of tremors or unspecified idiopathic peripheral neuropathy that is linked to service or indicates that it is otherwise the result of service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 3. The criteria for service connection for an irregular heartbeat have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 4. The criteria for service connection for a bilateral leg disability, to include essential and other specified forms of tremors and unspecified idiopathic peripheral neuropathy, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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). Overview of Service Connection Claims In January 2011, the Veteran submitted claims of entitlement to service connection for bilateral hearing loss, bilateral ringing in the ears, and bilateral tremors. In December 2011, he requested service connection for pain and numbness in both legs and feet and an irregular heartbeat. For reasons set forth below, the Board finds that the Veteran's claims must be denied. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including sensorineural hearing loss, will be presumed if the diseases manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Regulations provide that service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). When considering evidence supporting a service connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Service Connection for Bilateral Hearing Loss and Tinnitus Turning to the record on appeal, a review of the Veteran's post-service medical records reveals that the Veteran has current diagnoses of bilateral sensorineural hearing loss and tinnitus. Since the Veteran currently has medical diagnoses related to his claims, the issues that are disputed before the Board are whether or not these disorders are related to service or to any service-connected disability. In his December 2013 notice of disagreement, the Veteran asserts that his post-service hearing loss and tinnitus are the result of near proximity of explosions and gunfire during service. During a July 2013 VA audiological examination, the Veteran reported a history of active duty from January 1951 to November 1952; and that he worked in grave registration service. He reported exposure to gunfire without hearing protection while in training. The Veteran also told the VA audiologist that he was not employed prior to enlistment; and thus, had no exposure to loud noise. He reported that after separation, he was employed for 22 years as a truck driver; and then 10 years with the county road department doing road maintenance. The Veteran denied use of loud equipment, tools and any other noise exposure in civilian employment. In terms of his tinnitus claim, the Veteran asserted during his July 2013 audiological examination that he began experiencing recurrent tinnitus several months prior to the examination. Turning to the Veteran's service records, the Veteran's DD-214 reflects that his military occupational specialty was Infantry. The Board notes, however, that while the Veteran's service was designated as Infantry, the Veteran reported that he was assigned to the 148th Graves Registration Unit, just below the 38th parallel during the Korean war. He indicated in a July 2013 mental health examination that his duties involved being part of a crew who processed dead bodies of soldiers, an assignment not typically associated with acoustic trauma. Additionally, the Board observes that the Veteran's service medical treatment records document illnesses and conditions such as fevers; flank pain (for which he was s hospitalized) ; tonsillitis; the need for eyeglasses; common colds and references a back injury. However, the records are entirely negative for complaints or findings of hearing loss or tinnitus at any time during service or at the time of discharge. The Veteran's November 1951 service separation examination notes a clinical evaluation in which the Veteran's ears were noted to be normal. Additionally, the Veteran's "whispered voice" hearing tests upon entrance into service and separation from service reflect right and left earing hearing as 15/15. Likewise, there are no medical records immediately after the Veteran's service discharge that contain a diagnosis of hearing loss or tinnitus. In fact, the claims folder is devoid of any pertinent treatment records or other medical documents until approximately August 1999 when it appears that the Veteran was initially diagnosed with bilateral hearing loss and it was recommended that he see an ear, nose and throat doctor for consultation. Post-service VA medical records dated in April 2012 reflect that Veteran seen in the clinic for hearing evaluation. The document notes that the Veteran received hearing aids in 1999. In terms of tinnitus, the record reports that the Veteran began experiencing intermittent tinnitus for the left ear only at that time. As of May 2012, the Veteran had not been diagnosed with tinnitus, as his VA medical "problem list" included conditions such as sensorineural hearing loss, essential and other specified forms of tremors, unspecified idiopathic peripheral neuropathy and arrhythmia. Tinnitus was not included on the medical problem list. Turning to the issue of a nexus, the Veteran was afforded a VA audiological examination in July 2013. After reviewing the Veteran's claims file, obtaining a history from the Veteran and conducting an audiological evaluation, the audiologist stated that the Veteran does suffer from bilateral hearing loss, but that his bilateral hearing loss was less likely than not related to service. See July 2013 rationale portion of audiological opinion. In providing a rationale for her findings, the audiologist noted that the Veteran's hearing upon entrance and exit from service were tested via the whispered voice hearing test (i.e., 15/15). She stated that whispered voice tests cannot rule out a unilateral hearing loss or a high frequency hearing loss. In this case, she stated that the Veteran did not have a significant history of military noise exposure and denied civilian noise exposure (as the Veteran had reported to her that his exposure to acoustic trauma in service was to gunfire without hearing protection while in training). Without audiometric testing at induction and separation, she was of the opinion that the Veteran's hearing loss was less likely than not related to military noise exposure. In terms of his tinnitus claim, the VA audiologist opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. In providing a rationale for her opinion, the audiologist noted that the Veteran reported to her that he did not begin to experience tinnitus until several months prior to the examination, which was many years after service. In essence, the Board views the audiologist's statement as meaning that one would expect that if a person developed tinnitus as a result of noise exposure, there would not be a significant time gap between the acoustic trauma and the occurrence of the tinnitus. After reviewing all of the evidence of record, the Board finds the July 2013 VA audiologist's opinions to be both probative and persuasive. In this regard, the VA audiologist has specialized medical expertise and training in auditory matters, had adequate facts and data on which to base her medical opinions and provided a sound analysis and rationale for her medical opinions. Significantly, the Board also finds it probative that there is no medical evidence in the claims file that contradicts the July 2013 VA audiologist's opinion; much less any contrary medical opinion that supports the claim for service connection for bilateral hearing loss or tinnitus. The only other evidence of record supporting the Veteran's claim are his own lay statements. In this regard, a review of the record also reveals a complete absence of complaints or indications that the Veteran had hearing problems until 1999, when he was seen for a consultation related to his hearing. Furthermore, the Veteran has not asserted that he has had any continuity of symptomatology from the time of his discharge to present. Symptoms of hearing loss were not actually shown until 1999, over 4 decades after service separation; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.309(a) is not warranted. In response to the July 2013 audiological examination report, the Veteran and his representative have submitted statements in which they imply that the July 2013 audiology report is invalid in that there is an inconsistency in the examination report. In this regard, the Veteran and his representative note that the examination report reflects an initial medical opinion from the audiologist that it was at least as likely as not that the Veteran's hearing loss and tinnitus resulted from military noise exposure; and then subsequently provided a rationale in which she opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not related to service. See December 2013 notice of disagreement; December 2017 Written Brief Presentation. A review of the July 2013 VA audiologist's report does reflect the contradiction noted by the Veteran and his representative. However, the Board finds that a complete review of the audiologist's examination report clearly shows that the contradiction was made in error; and that such an error could easily occur given the VA examination form format, with an examiner being asked initially to mark boxes pertaining to "yes" and "no" answers related to the question of whether a veteran's 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 this case, it appears the VA audiologist mistakenly marked the box "yes" to the above-referenced question rather than the "no" box. A review of the rationale provided by the audiologist clearly sets forth the medical opinion that the Veteran's hearing loss was less likely as not related to noise exposure in service, as it clearly provides the evidence upon which she relied upon in formulating her opinion. As such, the Board finds that a Remand of this claim for clarification by the VA audiologist as to her ultimate medical opinion is not necessary given the context of the VA audiology medical form and the personal rationale provided by the examiner in the section directly below the form "boxes" referenced above. In making the above-referenced findings, the Board does not dispute the competency of the Veteran's statements that he has experienced hearing problems and tinnitus he believes are associated with his service. The Board simply finds his statements to be less persuasive and probative when viewed in the context of the medical evidence in this case. While tinnitus is a condition that is inherently subjective in nature, and therefore readily capable of even lay diagnosis, the denial of the Veteran's tinnitus claim is based upon the Veteran's own statements in his medical records and during his July 2013 VA examination that his tinnitus developed many years after service. In terms of the Veteran's bilateral hearing loss claim, the Board notes that there are many types and causes of hearing loss, and the diagnosis of type and causation of hearing loss is beyond competence of a lay person and requires medical training. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370 (2002). Hence, the Veteran's contentions of a nexus are of little probative value. In light of the foregoing, the Board concludes that the Veteran's post-service hearing difficulties and subsequent diagnoses of bilateral hearing loss and tinnitus are not related to or a result of any incident in service. Service connection for an Irregular Heartbeat and Bilateral Leg Condition In December 2011, the Veteran requested service connection for pain and numbness in both legs and feet and an irregular heartbeat. In this regard, the Veteran asserts that he has an irregular heartbeat that has been caused by anxiety and depression arising from the many years of seeing in his mind what he went through in South Korea as a graves registration solder. He also contends that he has a bilateral leg condition (claimed as tremors, pain and numbness in both legs) has developed as a result of frozen feet he suffered during the winter time he served in Korea. According to a VA medical "problems list" dated in May 2012, the Veteran has been diagnosed with essential and other specified forms of tremors, unspecified idiopathic peripheral neuropathy and arrhythmia. In this regard, VA medical records dated in February 2001 also note that the Veteran was seen for a follow-up visit for atherosclerotic cardiovascular disease, hypertension and hyperlipidemia at that time; and that the Veteran was taking Acebutolol 200 mg capsules daily for heart rate and blood pressure. Private medical records dated in 2012 also note the Veteran as being assessed with having palpitations; and reflect the Veteran's complaints of tingling in the lower legs and feet. While the Veteran's VA medical records document that the Veteran has been receiving medical treatment for a heart condition and bilateral leg condition, a review of the Veteran's service treatment records does not show treatment for or a diagnosis of irregular heartbeat or any other condition that could be associated with a heart problem or a leg condition that could be associated with service. In this regard, the Board observes that the Veteran's November 1951 service separation examination notes a clinical evaluation in which the Veteran's heart and lower extremities as normal. The Veteran does not dispute the lack of documentation in his service records. Rather, as mentioned above, the Veteran contends that he has developed irregular heartbeat/a heart condition as a result of being part of the 148th Graves Registration Unit. He claims he experiences anxiety about remembering his duties in Korea, resulting in an irregular heartbeat. See December 2013 statement with notice of disagreement. Additionally, the Board observes that during a July 2013 mental health examination, the Veteran reported that he had had "tremors for years' and that his father had "pretty well the same thing." The VA psychologist examining the Veteran at that time commented that it was more likely than not that, given his lack of significant psychiatric symptoms and his family history of tremor, that the Veteran's reported tremors were medically and not psychiatrically-based. At that time, the Veteran was found not to have a mental disorder that conformed to the DSM-IV criteria (i.e., he did not have an anxiety disorder that could be related to an irregular heartbeat or a bilateral leg condition - initially raised as a claim of entitlement to service connection for tremors, pain and numbness in both legs). After reviewing all of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for an irregular heartbeat and bilateral leg condition. The Veteran himself has essentially conceded that he did not experience any symptomatology in service that can be associated with his post-service heart condition; nor does he dispute not experiencing tremors, pain or numbness in service or that he has a family medical history of the type of tremors he presently experiences. Other than the Veteran's lay statements, there is no evidence of record in support of the Veteran's claims. In this regard, a review of the record reveals that the Veteran was first noted as being treated for a heart condition in 2001; and that he had been diagnosed by 2012 with essential and other specified forms of tremors and unspecified idiopathic peripheral neuropathy. In making the above-referenced findings, the Board again does not dispute the competency of the Veteran's statements that he currently experiences heart and bilateral leg problems. The Board simply finds his statements to be less persuasive and probative when viewed in the context of the other evidence in this case. In light of the foregoing, the Board concludes that the Veteran's post-service irregular heart beat and bilateral leg condition (diagnosed as essential and other specified forms of tremors and unspecified idiopathic peripheral neuropathy) are not related to or a result of any incident in service. ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is denied. Service connection for an irregular heartbeat is denied. Service connection for bilateral leg condition, to include essential and other specified forms of tremors and unspecified idiopathic peripheral neuropathy (initially claimed as tremors, pain and numbness in both legs), is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs