Citation Nr: 18146340 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-33 511 DATE: October 31, 2018 ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. FINDING OF FACT The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s tinnitus had its onset during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, tinnitus was incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1974 to March 1976. This matter is before the Board of Veterans Appeals (Board) on appeal from a October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish service connection a Veteran must generally 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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), Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For sensorineural hearing loss, as organic disease of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Entitlement to service connection for tinnitus By way of background, the Service Treatment Records (STRs) include a January 1974 enlistment examination. It disclosed a clinically normal evaluation of the ears – general and ear drums. The Veteran’s separation examination from 1976 disclosed a clinically normal evaluation of the ears – general and ear drums. It includes a notation of a chest x-ray taken on “19 Feb 1976.” Given the Veteran’s discharge in March of that year, the examination is presumably from shortly before discharge. The Veteran’s Certificate of Discharge from Active Service (DD Form 214) shows that she served as a decontaminator. The Veteran was afforded a September 2015 VA audiological examination. The Veteran reported that the ringing first began after military service and started as a buzzing sound. The VA examiner reviewed the claims file, and noted that the enlistment examination from 1974 shows normal hearing bilaterally. The VA examiner also highlighted that the exit examination does not contain or provide threshold specific audiological information. The VA examiner documented that the Veteran’s duties during military service consisted of chemical decontamination. The Veteran fired weapons with both hands. The Veteran did not use any hearing protection. The Veteran did not require a hearing conservation program. The VA examiner opined, “The Veteran has a diagnosis of clinical hearing loss, and his or her tinnitus is at least as likely as not (50% probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss.” Next, a November 2015 VA medical opinion was obtained. The VA examiner opined that tinnitus was not caused by military noise exposure. The VA examiner reasoned that the etiology of tinnitus is associated with the current hearing loss, which is also not caused by military noise exposure. The VA examiner explained, “Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. However, you would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury…There is no objective evidence that a noise injury exists, and therefore no evidence that tinnitus is related to noise injury.” However, the VA examiner also remarked, “She served as a chemical, biological, radiological, and nuclear (CBRN) specialist, which had a moderate probability for hazardous noise exposure during military service.” A December 2015 rating decision confirmed and continued the prior denial for service connection for tinnitus. The Veteran submitted a March 2016 Notice of Disagreement (NOD) showing in part, “I believe that my tinnitus was caused by or a result of my military noise exposure.” The Veteran perfected her appeal in July 2016. She indicated that she only wished to appeal the issues of service connection for tinnitus and bilateral hearing loss. She wrote a detailed description of the bases for her appeal: I have had a ringing and buzzing in my ears for almost 40 years that has progressed over the years to problems hearing. I can’t hear everything said during normal conversation, watching television, understanding the students I teach, or participating in staff meetings without asking people to repeat themselves. I can only contribute my hearing problems and ringing in my ears to being exposed to extreme noise early on during my service in the Army. I have not been exposed to that type of noise since my time served. The Veteran then submitted an August 2016 Notice of Disagreement (NOD). It shows in part, “I’ve had ringing in my ear and hearing loss since I left the military which has progressed over time.” The Veteran contends that she is entitled to service connection for tinnitus. As a threshold issue, the Board notes a procedural consideration. Briefly, the Board observes that the Veteran did not explicitly list bilateral hearing loss disability in her March 2016 NOD. However, she listed it in the subsequent Form 9 and in the August 2016 NOD. Given her description of the symptoms, and the related nature of the disabilities, the Board has liberally construed the initial March 2016 NOD to contain both the issues of service connection for tinnitus and bilateral hearing loss disability, as later explicitly listed on the Form 9. Next, the RO continued developing the claim, and issued an Statement of the Case (SOC) only for tinnitus in June 2016. In April 2018, the RO issued an Statement of the Case (SOC) for several issues, including bilateral hearing loss disability. A May 25, 2018 Report of General Information shows that the Veteran contacted VA and attempted to clarify that the issues of entitlement to service connection for both tinnitus and bilateral hearing loss were properly on appeal. The Board has confirmed that they are. Therefore, there has been no prejudice to the Veteran in this regard, and neither the Veteran nor her representative have contended otherwise. The Veteran is competent to report a current diagnostic impression of tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). The Board also observes that the Veteran is competent to report that her symptoms of tinnitus continued since service. There is no audiological separation examination of record, as highlighted by the September 2015 VA examiner. Consequently, the Board does not have a basis upon which to question or doubt the credibility of the Veteran’s competent lay contentions. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Thus, the most probative evidence of record is the Veteran’s self-reported history as to the onset of her tinnitus, and she is competent and credible to report when she first noticed ringing in her ears. In particular, in the July 2016 VA Form 9, the Veteran asserted, “I have had a ringing and buzzing in my ears for almost 40 years that has progressed over the years to problems hearing…I can only contribute my hearing problems and ringing in my ears to being exposed to extreme noise early on during my service in the Army.” The Board finds this to be highly probative. The Board has also considered the constancy of the Veteran’s reports of a ringing noise in her ears. Additionally, the Board notes that the Veteran’s report of the onset has not waivered throughout the period on appeal. There is also a September 2015 VA examination rendering a positive secondary service connection nexus opinion, although the Board notes the primary theory of entitlement is for direct service connection based upon a continuity of symptomatology. Indeed, the Veteran has stated that tinnitus began before hearing loss. To the extent the November 2015 VA examination could be construed as finding against tinnitus being directly attributable to service, the VA examiner’s opinion is inconsistent with the Veteran’s own noted competent and credible lay reporting of an onset in service. The VA examination also does not entirely preclude the possibility of an in-service injury occurring, “Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise.” Her military occupational specialty (MOS) placed her at moderate risk for noise exposure. In this case, the Veteran reported that she fired weapons and did not wear hearing protection. Consequently, this opinion is entitled to diminished probative weight. At the very least, the evidence of record is in relative equipoise as to the onset of the Veteran’s tinnitus. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran’s tinnitus was incurred in service. She has had tinnitus continuously since service. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). Accordingly, service connection for tinnitus is warranted. 38 C.F.R. § 3.303 (d). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss disability is remanded. The Board incorporates its discussion from the section above by reference. A remand is necessary for additional development. In September 2015 the Veteran was afforded a VA examination. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follow: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 45 30 30 LEFT 40 50 50 35 35 The average decibel loss is 39 in the right ear. The average decibel loss is 42 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 96 percent in the left ear. The VA examiner opined that use of the word recognition score was appropriate for this Veteran. The VA examiner opined that the test results are valid for rating purposes. The VA examiner found sensorineural hearing loss, although not for VA purposes, in both the right and left ears. Here, the conclusions of the VA examiner are inconsistent in that they are based upon misinterpreted audiometric findings, which show bilateral hearing loss for VA purposes under the criteria in 38 C.F.R. § 3.385. In other words, the September 2015 VA examiner’s negative nexus opinion may have been based at least in part upon the Veteran not having hearing loss for VA purposes. The Board observes that VA is bound by the rating criteria in 38 C.F.R. § 3.385. VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this regard, the opinion cannot be the basis upon which we fully adjudicate the Veteran’s bilateral hearing loss claim. For these reasons, a new, adequate VA audiological examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327 (a). Consequently, a remand is warranted. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder. 2. Please schedule the Veteran for a VA examination by an appropriate examiner who has not previously examined the Veteran to determine the nature and etiology of any bilateral hearing loss disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. The Board notes that the Veteran is competent to report difficulty hearing, and a history of noise exposure in service. The examiner should provide a rationale for all opinions expressed. 3. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and her representative an appropriate supplemental statement of the case (SSOC). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel