Citation Nr: 18144885 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-44 410 DATE: October 25, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus, as secondary to service-connected hearing loss, is granted. As to the issues of entitlement to service connection for right foot disability, to include a soft mass and degenerative joint disease (DJD); service connection for a lumbar spine disability, to include DJD; and a compensable rating for a right upper chest wall scar the appeal is dismissed. FINDINGS OF FACT 1. Resolving doubt in the Veteran’s favor, he has experienced reduced hearing acuity related to bilateral hearing loss since in-service exposure to hazardous noise. 2. The Veteran’s bilateral tinnitus is as likely as not a symptom associated with his bilateral hearing loss. 3. On February 20, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal is requested as to the issues of entitlement to service connection for right foot disability, to include a soft mass and DJD; service connection for a lumbar spine disability, to include DJD; and a compensable rating for a right upper chest wall scar. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)–(b), (d), 3.307, 3.309(a), 3.385. 2. The criteria for service connection for tinnitus, as secondary to service-connected hearing loss, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for withdrawal of an appeal by the appellant as to the issues of entitlement to service connection for right foot disability, to include a soft mass and DJD; service connection for a lumbar spine disability, to include DJD; and a compensable rating for a right upper chest wall scar have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1958 to April 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision. The Board notes that the Veteran is in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). An August 2018 report of general information shows that the Veteran withdrew his request for a Board hearing, which had been scheduled for August 14, 2018. 38 C.F.R. § 20.704(e). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by an authorized representative. 38 C.F.R. § 20.204. In the present case, in a February 20, 2018, statement in support of claim the Veteran withdrew this appeal as to the issues of entitlement to service connection for right foot disability, to include a soft mass and DJD; service connection for a lumbar spine disability, to include DJD; and a compensable rating for a right upper chest wall scar and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed as to these issues. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). For certain enumerated chronic diseases, such as other organic diseases of the nervous system, which include sensorineural hearing loss and tinnitus, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining § 3.303(b) to those chronic diseases listed in § 3.309(a)); Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an organic disease of the nervous system under 38 C.F.R. § 3.309(a)). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b). Alternatively, a disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progression by a service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a), (b). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). For VA purposes, there are three ways in which an audiological examination can show that hearing loss is disabling: 1) “when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater”; or 2) “when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater”; or 3) “when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385 (2017). “Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Absence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 158–60 (1993) (setting out the requirements for establishing service connection for hearing loss). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran contends that his hearing loss is the result of in-service hazardous noise exposure, and as such, he seeks service connection. In his February 2016 statement in support of claim, he argued that the lack of evidence of loss of hearing acuity in his service treatment records does not necessarily preclude service connection for hearing loss, citing Godfrey v. Derwinski, 2 Vet. App. 352, 357 (1992), and Hensley v. Brown, 5 Vet. App. 155, 159–60 (1993). He argued further that a private medical opinion cannot be discounted solely because the claims file had not been reviewed and that a VA medical opinion cannot be given preference over a private medical opinion solely because the VA examiner reviewed the claims file. The question for the Board is whether the Veteran’s bilateral hearing loss manifested to a compensable degree in service or within one year thereafter, or whether continuity of symptomatology has existed since service. Alternatively, whether his bilateral hearing loss is directly related to service. The Board concludes that while the Veteran’s bilateral hearing loss, a chronic disease in the catch-all of other organic diseases of the nervous system under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), was not diagnosed during service and may not have manifested to a compensable degree within the applicable presumptive period, resolving doubt in favor of the Veteran, there has been continuity of symptomatology of bilateral hearing loss since service. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a), 3.310(a), 3.385; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Fountain v. McDonald, 27 Vet. App. 258 (2015). In August 2011, the Veteran was afforded a VA examination for hearing loss. The Veteran’s speech recognition score in the right ear was 92 percent and in the left ear was 96 percent; the following puretone thresholds were obtained: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 55 55 70 LEFT 25 35 35 40 60 The Veteran was diagnosed with bilateral sensorineural hearing loss. The Board finds that he has bilateral hearing loss for VA purposes, see 38 C.F.R. § 3.385, and accordingly, the first Holton element, current disability, is met. The Veteran’s DD Form 214 shows that his military occupational specialties (MOS) were 3531/Motor Vehicle Operator and 3537/Trkmstr (Motor Transport Operations Chief) and that he was in receipt of the Rifle Expert Badge and Vietnamese Campaign Medal. His military personnel records show his weapons firing record for.45 pistol, BAR, M-1 rifle, and M-14 rifle from 1958 to 1968. In a February 2011 statement in support of claim, the Veteran stated that while he served in Vietnam he was exposed to heavy machine gun fire, mortar fire, tank cannon fire, and other explosives. In a June 2011 letter, the Veteran detailed his before and after Vietnam activities on the shooting range as an instructor for both rifle and pistol. He stated that when working in the motor pool he worked with noisy equipment every day. He detailed his assignments while in Vietnam and the type of noise exposure based on weapon type and the duration of exposure he experienced when operating in the rain forest. In an April 2015 letter, the Veteran stated that he had had persistent ringing in his ears since leaving Vietnam and that his hearing had become progressively worse. He stated that because he graduated first in his class in the Technique and Military Instruction Course, he was called upon to conduct weapons training whenever there was a company or battalion training. He stated he was exposed to noise from rifles, grenades, 106 guns, 50 caliber machine guns, and 45 caliber handguns. He detailed eight-hour days of shooting for months at a time. He recounted the noise exposure he experienced during his tour in Vietnam. He also noted his time as a drill instructor. He stated that during his almost twelve years of service, he was not issued hearing protection. During a May 2015 hearing before a decision review officer (DRO), the Veteran described the noise exposure from tanks and rocket fire while he served in Vietnam. He stated that he did a lot of weapons training while in Vietnam and that he worked on heavy vehicles such as deuce-and-a-half, Mighty Mite vehicles and gun MULEs with 106 guns. He stated that, other than one set of earplugs he was issued upon entry into boot camp, he was not issued any hearing protection. He stated that while in Vietnam after several nights in a row of weapons fire his ears would ring for four or five days afterward. It would go away and come back and progressively got worse. He stated that he expected it to go away after service but it did not; rather it became constant. He stated that he believed it hurt him in trying to listen to speech because he hears sounds like birds. He stated that he reads lips. The Veteran stated that he believed he first had hearing problems when stationed at Quantico, serving on the rifle team and during his assignment to teach riflery at a Boy Scout camp. The Veteran’s wife testified that she recalled his hearing problem starting after he returned from Vietnam. The Veteran’s service treatment records are silent for any symptoms, complaints, diagnosis, or treatment of hearing loss or tinnitus. The audiometry report on his March 1969 separation examination does not show loss of hearing acuity. The Board notes that the lay evidence is competent and probative as to the onset and continuity of the Veteran’s hearing loss and tinnitus since it pertains to observable symptoms within the personal knowledge of the witnesses. See 38 C.F.R. § 3.159(a)(1)–(2) (2017) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses). Furthermore, there is no evidence to the contrary. See 38 C.F.R. § 3.307(b), (d). The Board finds that the Veteran’s MOS and in-service duties and assignments were consistent with in-service hazardous noise exposure resulting in acoustic trauma. The Veteran’s credible statements establish that while still in service he experienced recurrent tinnitus and reduced hearing acuity. Accordingly, the second Holton element, in-service incurrence or aggravation of a disease or injury, is met. In a June 2011 letter, the Veteran stated that his hearing loss had been gradual and that after years of his family begging him, he had his hearing tested. He stated he needed bilateral hearing aids. He stated that he had “been bothered for many years with ringing in [his] ears.” In a June 2011 letter, the Veteran’s son stated that he had noticed an acute change in the Veteran’s hearing over the years. It was stated that the Veteran played the television at full blast and that he had noticeable problems in conversations. It was stated that the Veteran had gotten special equipment to hear the television. In a June 2011 letter, the Veteran’s wife of 47 years stated that after the Veteran returned from Vietnam she noticed that his hearing seemed different, and it progressively got worse as time went on. She stated that the Veteran would ask people to repeat what they had said and that eventually he needed the television so loud that others could not tolerate it. During the May 2015 DRO hearing, the Veteran stated that in civilian life he worked in the service and sales department of a car company, and then worked for a company making and fixing electrical machinery. He was recognized for his ability to paint, so he started working in the paint booth full-time. The Veteran and his wife worked out that he was first seen for his hearing approximately fifteen years before, and the Veteran stated he was on his second set of hearing aids. In a February 2016 statement in support of claim, the Veteran stated that his tinnitus started while in Vietnam but not as intense as when he sought treatment. He stated that it became increasingly worse and became considerably worse about five to six years before the August 2011 VA examination. In the report of the August 2011 VA examination, the examiner noted that while in the military the Veteran’s noise exposure included “Motor pool, Vietnam service in the motor pool (combat), shooting team member, and taught rifle training.” The examiner opined that it was less likely as not that the Veteran’s hearing loss was caused by or a result of military noise exposure. The rationale consisted of two shortly stated points. It was stated that the Veteran’s separation audiogram indicated normal hearing, and “Institute of Medicine in a 2005 study on Military and Noise Exposure stated that there was no scientific evidence to support delayed onset of noise induced hearing loss.” Records show that the Veteran was seen at a speech and hearing center in June 2012 for a second opinion on the etiology of his hearing loss and tinnitus. It was noted that he had worn bilateral hearing aids for four years. It was recorded that the Veteran reported having “binaural, non-pulsatile, persistent tinnitus as well as difficulty hearing since leaving” service. It was noted that he reported eleven years of military service, which “included exposure to heavy machine gun fire, 50 caliber and light machine gun fire, combat explosions in Vietnam, hand grenades, and rocket attacks.” The Veteran reported recent onset of incidents of vertigo, and it was noted that his father had hearing loss. He reported that after service he worked as a mechanic and in a machine shop, and it was noted that these positions likely exposed him to loud occupational noise. The audiologist opined that, based upon the provided history, it was as likely as not that the Veteran’s military-related noise exposure had significant contribution to his hearing loss. It was also opined that other factors including occupational noise and family history could not be ruled out. The Board notes that the Veteran and lay witnesses, while entirely competent to report their personal knowledge of the continuity of his symptoms of tinnitus and reduced hearing acuity, are not competent to proffer an opinion as to diagnoses or the etiologies of his disabilities. Such opinions require specific medical training and are beyond the competency of a lay person. In the absence of evidence indicating that the Veteran and the other lay witnesses have the medical training to render medical opinions, the Board must find that his contentions in these regards to be of no probative value. See 38 C.F.R. § 3.159(a)(1)–(2) (2017) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”). Accordingly, while the lay evidence is competent to establish continuity of symptoms, they are not competent evidence to support any specific diagnosis or etiology of a disability. The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician’s opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300–04 (2008); Prejean v. West, 13 Vet. App. 444, 448–49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Here, the August 2011 VA examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was caused by or resulted from his exposure to hazardous noise while in the military. In support of this opinion, it was noted that the Veteran’s hearing was normal at the time of separation from service and that a 2005 study had stated that there was no scientific evidence to support delayed onset of noise induced hearing loss. The audiologist who examined the Veteran in June 2012 opined that it was as likely as not that the Veteran’s military-related noise exposure had significant contribution to his hearing loss. It was also noted that other factors could not be ruled out. The Board finds the June 2012 private nexus opinion more probative because it took into consideration the Veteran’s reports of in-service onset of symptoms and continuous symptoms since service of reduced hearing acuity, which the VA examiner did not. Even when considering occupational noise and family history, the private audiologist still opined that in-service noise exposure had “significant contribution” to the Veteran’s hearing loss. Because the VA examiner did not consider the Veteran’s reports of continuous symptomatology and found his hearing loss to be “delayed onset,” the examiner’s reliance upon the 2005 Institute of Medicine study is undercut. Therefore, resolving doubt in favor of the Veteran, the Board finds that the evidence establishes that there has been continuity of symptoms of bilateral hearing loss since service. Accordingly, the third Holton element, medical nexus, for service connection for bilateral hearing loss is met, and the claim must be granted. 2. Entitlement to service connection for bilateral tinnitus is granted. The Veteran contends that his bilateral tinnitus is the result of in-service noise exposure, and as such he seeks service connection. The question for the Board is whether the Veteran’s tinnitus is related to active service, to include as secondary to his bilateral hearing loss. The Board concludes that the Veteran’s bilateral tinnitus is proximately due to his bilateral hearing loss. 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). During the August 2011 VA examination, the examiner diagnosed the Veteran as having bilateral tinnitus. Accordingly, the first Wallin element, current disability, is met. As explained above, the Veteran’s bilateral hearing loss is service-connected, and accordingly, the second Wallin element, service-connected disability, is met. The VA examiner opined that the Veteran’s tinnitus was as likely as not a symptom of his bilateral hearing loss. Accordingly, the third Wallin element, medical nexus, is also met, and the claim for service connection for bilateral tinnitus must be granted. (Continued on the next page)   As noted above, the Veteran is in receipt of a TDIU, and that being the case, further development of these claims would not be efficient. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney