Citation Nr: 18140798 Decision Date: 10/09/18 Archive Date: 10/05/18 DOCKET NO. 17-51 612 DATE: October 9, 2018 ORDER For the entire initial rating period on appeal from August 16, 2016, a compensable initial disability rating for service-connected bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. August 2016 private audiometric findings, revealed a decibel puretone threshold average of at least 60 in the right ear, and a decibel puretone threshold average of at least 73.75 in the left ear. Speech discrimination scores were not provided for either ear. 2. The provisions of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment were applicable to the left ear in August 2016. 3. January 2017 audiometric testing revealed a decibel puretone threshold average of at least 51 and speech discrimination of at least 36 percent in the right ear, and a decibel puretone threshold average of at least 70 and speech discrimination of at least 96 percent in the left ear. 4. The provisions of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment were applicable to the left ear in January 2017. 5. The July 2017 private audiometric testing revealed a decibel puretone threshold average of at least 56.25 in the right ear, and a decibel puretone threshold average of at least 76.25 in the left ear. Speech discrimination scores were not provided for either ear. 6. The provisions of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment were applicable to the left ear in July 2017. 3. Tinnitus is etiologically related to in-service noise exposure and service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. For the entire initial rating period on appeal, the criteria for a higher (compensable) initial disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86 (2017). 2. Resolving all doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty with the United States Air Force from December 1958 to February 1960. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO), which denied service connection for tinnitus and granted service connection for bilateral hearing loss, assigning a non-compensable (0 percent) initial rating effective August 26, 2016. Neither the Veteran nor the 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 duty to assist argument). 1. Initial rating for service-connected bilateral hearing loss Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial disability rating assigned for service-connected hearing loss by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. Id. The Board finds that the weight of the evidence establishes that symptoms related to hearing loss have changed in severity over the course the appeal to warrant a staged rating. The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four). Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. 38 C.F.R. § 4.85. When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Exceptional patterns of hearing impairment are discussed within 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation from either Table VI or Table VIa, whichever results in the higher numeral. That numeral is then elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). The Veteran is service connected for bilateral hearing loss, initially rated as noncompensable (0 percent) effective August 16, 2016. The Veteran contends generally that a higher initial rating is warranted for bilateral hearing loss. The Veteran reported difficulty with hearing due to service-connected hearing loss during the entire rating period on appeal in the January 2017 VA examination and within VA treatment records. While VA treatment records throughout 2017 show the Veteran primarily complained of problems with hearing aids, during the January 2017 VA authorized examination, the Veteran indicated that hearing loss caused difficulty understanding. After a review of all the evidence, lay and medical, the Board finds that a higher compensable initial disability rating is not warranted for bilateral hearing loss for the entire rating period on appeal. On the private audiological evaluation in August 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 60 70 65 LEFT 80 85 70 70 70 While speech discrimination score values were not given, the bottom of the August 2016 audiogram dictates that the “Maryland CNC list” was used. HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 50 60 55 LEFT 80 75 65 65 75 On the VA authorized audiological examination in January 2017, pure tone thresholds, in decibels, were as follows: Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 36 percent in the left ear. On the private audiological evaluation in July 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 55 60 65 LEFT 85 80 75 75 75 While speech recognition values were not provided, the bottom of the July 2017 audiogram dictates that the “Maryland CNC list” was used. The only speech recognition scores of record are found within the January 2017 VA authorized audiometric evaluation. To ensure the most favorable rating for the Veteran, the Board will use the January 2017 speech recognition scores when evaluating the above audiological examination results. The August 2016 private audiometric findings, applied to Table VI, yield a numeric designation of IX for the right ear (60 decibel puretone threshold average, and 36 percent speech discrimination from the January 2017 audiological evaluation), and a numeric designation of II for the left ear (73.75 decibel puretone threshold average, and 96 percent speech discrimination from the January 2017 audiological evaluation). The provisions of 38 C.F.R. § 4.86 apply to the left ear, and because Table VIa yields a numeric designation of VI for the left ear (73.75 decibel puretone threshold average), the results from Table VIa will be applied as they are more favorable to the Veteran. The numeric designations for the right ear (IX) along with the numeric designation for the left ear (VI), entered into Table VII produce a non-compensable (0 percent) rating for hearing impairment. The January 2017 audiometric findings, applied to Table VI, yield a numeric designation of VIII for the right ear (51 decibel puretone threshold average, and 36 percent speech discrimination), and a numeric designation of II for the left ear (70 decibel puretone threshold average, and 96 percent speech discrimination). The provisions of 38 C.F.R. § 4.86 apply to the left ear, and because Table VIa yields a numeric designation of VI for the left ear (70 decibel puretone threshold average), the results from Table VIa will be applied as they are more favorable to the Veteran. The numeric designations for the right ear (VIII) along with the numeric designation for the left ear (VI), entered into Table VII produce a non-compensable (0 percent) rating for hearing impairment. The July 2017 private audiometric findings, applied to Table VI, yield a numeric designation of VIII for the right ear (56.25 decibel puretone threshold average, and 36 percent speech discrimination from the January 2017 audiological evaluation), and a numeric designation of II for the left ear (76.25 decibel puretone threshold average, and 96 percent speech discrimination from the January 2017 audiological evaluation). The provisions of 38 C.F.R. § 4.86 apply to the left ear, and because Table VIa yields a numeric designation of VI for the left ear (76.25 decibel puretone threshold average), the results from Table VIa will be applied as they are more favorable to the Veteran. The numeric designations for the right ear (VIII) along with the numeric designation for the left ear (VI), entered into Table VII produce a non-compensable (0 percent) rating for hearing impairment. The Board finds that puretone thresholds reported in the August 2016, January 2017 and July 2017 audiological evaluations were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) and were not recorded at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in the right ear; thus, the provision of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment do not apply to the right ear. The Board finds that audiometric testing results from the August 2016, January 2017 and July 2017 audiograms are probative and included adequate testing under the rating criteria. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The record does not otherwise contain valid audiometric testing that may be used in evaluating the Veteran’s disability. For these reasons, the Board finds that, for the entire rating period on appeal, a compensable rating is not warranted for service-connected bilateral hearing loss. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Tinnitus is a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to this claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). 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. With a chronic disease shown 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. 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. 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). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such 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; 38 C.F.R. §§ 3.307, 3.309(a); Fountain, 27 Vet. App. at 258. 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. Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring, or clicking. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994). In adopting the current rating criteria for tinnitus under Diagnostic Code 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or “true” tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or “pseudo-tinnitus”), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033-01 (Sept. 19, 2002). In an October 2017 statement, the Veteran contends that his current tinnitus is related to exposure to acoustic trauma associated with firing weapons for days without ear protection while in service. After reviewing all the lay and medical evidence, and the Board finds that the Veteran experienced acoustic trauma in service. The DD Form 214 reflects an Air Force Specialty Code of 47131, Auto Repairman. The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that veterans with a duty MOS similar to that of the Veteran, to include Special Vehicle Maintenance, General Purpose Vehicle Mechanic, and Vehicle Body Maintenance, had a moderate probability of exposure to hazardous noise. This evidence shows that hazardous noise exposure is consistent with the circumstances and duties during service as an auto mechanic. 38 U.S.C. § 1154(a). The Board finds that the Veteran also had some degree of occupational noise exposure after service. Within an October 2017 statement, the Veteran indicated he worked as a mechanic in a motor pool but eventually became a garage owner operator, working from an office. The Board finds that the Veteran has currently diagnosed tinnitus. A January 2017 VA examination notes a diagnosis of tinnitus. The Veteran is capable of, and has, reported that he has tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that tinnitus is capable of lay observation). There is conflicting evidence with regard to whether current tinnitus was incurred in service. Service treatment records are not available in this case. Where a veteran’s service records are unavailable through no fault of his own, there is a “heightened duty” to assist him in the development of the case, to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). Case law does not establish a heightened “benefit of the doubt,” only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the Veteran in developing a claim, and to explain its decision when the Veteran’s medical records have been lost. See Ussery v. Brown, 8 Vet. App. 64 (1995). A November 2004 Memorandum shows that the RO made multiple attempts to obtain the Veteran’s service treatment records from the U.S. Army and Joint Services Records Research Center (JSRRC); however, “no SMR’s or SGOs” were found. Regardless, in-service loud noise exposure has already been established, as VA granted service connection for bilateral hearing loss based on finding of acoustic trauma in service. In the absence of service treatment records, the Board finds that the Veteran has provided credible statements describing acoustic trauma during service and experiencing ringing in the ears during service. An August 2004 statement from the Veteran shows that after he enlisted in the Air Force he had to qualify for small arms on the firing range without ear protection. The Veteran indicated that the ringing in the ears has never gone away and that it continues to this day. In a February 2017 notice of disagreement, the Veteran indicates that he never had ringing in his ears never existed prior to service, and that while he was in service he was not given hearing protection. The Veteran is competent and credible to identify hazardous noise exposure in service and to identify symptoms of tinnitus. A July 2017 private medical opinion shows a diagnosis of tinnitus and bilateral sensorineural hearing loss, and that the Veteran reported having problems with since service. The private audiologist opined that noise trauma could not be ruled out as a contributing etiology. Conversely, a January 2017 VA contracted examiner opined that the currently diagnosed tinnitus was less likely than not caused by or a result of military noise exposure, reasoning that the tinnitus did not start until many years after service. Private treatment records associated with the Veteran’s claims show that the Veteran sought treatment in February 1983 and August 1989 for ringing in the ears. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that the Board may not rely on a medical opinion in which it is determined that a veteran’s lay statements lack credibility solely because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336, 1337 (Fed. Cir. 2006). To be adequate, a medical opinion must be based upon an accurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). This includes considering a veteran’s lay assertions of symptomatology that he is competent to observe, unless the Board has explicitly found that the assertions are not credible. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this case, the Board has found that the Veteran is credible in identifying current tinnitus, and that the tinnitus began during service. The absence of tinnitus in medical documentation prior to February 1983 does not mean that the Veteran did not have diagnosed tinnitus at that time. The Board finds that the January 2017 VA authorized examination opinion was based on the assumption that tinnitus did not exist until many years after service-separation, without recognizing or discussing the Veteran’s lay statements as to the date of onset during service. Accordingly, the Board finds that the January 2017 VA authorized medical opinion, which relied on an inaccurate factual assumptions as to date of onset of tinnitus, is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). The Board finds the July 2017 private medical opinion to be adequate and of probative value as it was based on the Veteran’s credibly reported history of noise exposure in service that is consistent with duties in service, and is consistent with history and findings during private audiological treatment. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the credible lay and medical evidence shows that the Veteran’s tinnitus began during service, so was incurred in service. The Veteran’s tinnitus is related to “acute noise exposure and noise-induced hearing loss” to include diagnosed and service-connected sensorineural hearing loss. As this type of hearing loss is the most common cause of tinnitus, and the Veteran’s statement describes ringing in the ears related to time as a member of the company rifle team, and the fact that any of the potential known causes for tinnitus are not shown, the Board finds that the tinnitus was both incurred in service and is associated with service-connected hearing loss. Resolving all benefit of the doubt in the Veteran’s favor, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel