Citation Nr: 18146679 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 17-43 312 DATE: October 31, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Service connection for a right knee disorder is remanded. Service connection for hypertension is remanded. FINDINGS OF FACT 1. The weight of the medical evidence shows that the Veteran’s bilateral hearing loss is etiologically related to noise exposure in service. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran has tinnitus which began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1947 to December 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. In June 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judges (VLJ). A copy of the transcript of that hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for bilateral hearing loss The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. The Veteran contends that he was exposed to acoustic trauma during his military service. Specifically, during the June 2018 Board hearing, he testified that he served as an aircraft maintenance technician during his twenty years of service where he was exposed to significant noise. The Veteran’s service personnel records confirm that the Veteran worked in aircraft maintenance and in-service noise exposure has been conceded. The Veteran’s service treatment records are negative for hearing loss. Significantly, in December 1953 and December 1959 examinations the Veteran’s whispered voice test was normal (i.e. 15/15) and the Veteran’s hearing was assigned a numerical designation of “1” in the PULHES profile, indicating normal hearing. See McKinney v. McDonald, 28 Vet. App. 15, 19-20, n. 4 (2016). Audiometric testing is also negative for hearing loss. Specifically, a January 1965 audiometric test showed the following: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear -10 -10 -10 -10 Left Ear -10 -10 -10 -10   A May 1967 audiometric test showed the following: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear -5 -5 -5 -5 Left Ear -5 -5 -5 0 However, service treatment records do show that the Veteran was treated for external otitis of the right ear in February 1958. The Veteran submitted an initial claim for service connection for bilateral hearing loss in August 2014 and was afforded a VA audiometric examination in March 2015. Audiometric testing at that time revealed the following: Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 30 35 35 40 Left Ear 35 40 45 45 Puretone Threshold Average Right Ear 35 Left Ear 41   Speech discrimination Right Ear 96% Left Ear 96% Notably, this report shows bilateral hearing loss pursuant to 38 C.F.R. § 3.385. However, the March 2015 VA examiner opined that it was less likely as not that the Veteran’s current bilateral hearing loss is related to his military service. As rationale for this opinion, the examiner noted that the Veteran was exposed to noise from machinery and aircraft without hearing protection during his service, however, service treatment records were negative for hearing loss and/or a major threshold shift in hearing. In connection with this claim, the Veteran submitted an October 2017 statement from Dr. A.T. wherein Dr. A.T. noted that the Veteran struggled with hearing loss and believed that this was directly related to the loud noise exposure he had during his time in the service. Dr. A.T. opined that it was very likely that the Veteran’s time in the military caused, or at least contributed to, many of his medical problems, including his hearing loss. In this case, medical evidence shows a current bilateral hearing loss disability for VA compensation purposes pursuant to 38 C.F.R. § 3.385. There is also evidence of an in-service injury. As above, the Veteran alleges military acoustic trauma, specifically aircraft noise, and his service personnel records show that the Veteran worked in aircraft maintenance. As such, the Board presumes the occurrence of the Veteran’s in-service acoustic trauma. Moreover, the evidence also suggests a link between this hearing loss and the Veteran’s military service. Specifically, Dr. A.T. opined that it was at least as likely as not that the Veteran’s bilateral hearing loss is related to the Veteran’s in-service noise exposure. While the March 2015 VA examiner opined that the Veteran’s current bilateral hearing loss is not related to the Veteran’s military service, the Board finds that this medical opinion is inadequate for many reasons. First, the Board notes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units and it is unclear whether the March 2015 VA examiner appropriately converted the audiometric findings from ASA to ISO. Second, the March 2015 VA examiner wrote that there was no “major threshold shift” when comparing the January 1965 audiometric findings to the May 1967 audiometric findings but there was at least a 5 dBL threshold shift in each ear and at each Hz which does indicate that there was a threshold shift and a worsening of the Veteran’s hearing between 1965 and 1967. Third, while the March 2015 VA examiner noted that the Veteran’s service treatment records were negative for hearing loss, referring, at least in part to the December 1953 and December 1959 examinations showing that the Veteran’s whispered voice test was normal (i.e. 15/15), the Board notes that whispered voice testing is not generally considered reliable. In Training Letter 10-02, issued in March 2010, the Director of the VA Compensation and Pension Service indicated that “whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure.” Finally, the March 2015 VA examiner does not address the February 1958 service treatment record noting external otitis of the right ear. As such, while there is conflicting evidence regarding whether the Veteran’s hearing loss was incurred during his military service, the Board finds that the evidence is in equipoise and will resolve reasonable doubt in the Veteran’s favor to find that bilateral hearing loss is related to the Veteran’s military service. Therefore, in light of Veteran’s conceded in-service noise exposure, current bilateral hearing loss, and the October 2017 private medical opinion relating the Veteran’s bilateral hearing loss to his service, the Board will resolve all doubt in his favor and find that service connection for bilateral hearing loss is warranted. 2. Service connection for tinnitus The Veteran contends that his tinnitus is due to his military service. As above, during the June 2018 Board hearing, he testified that he was exposed to significant noises during his military service and the Veteran’s claimed in-service noise exposure has been conceded. The Veteran also testified that he began experiencing tinnitus during his service. While service treatment records are negative for tinnitus, as above, they do show that the Veteran was treated for external otitis of the right ear in February 1958. In August 2014, the Veteran submitted a claim for service connection for tinnitus and he was afforded a VA audiological examination in March 2015. At the time of the examination, the Veteran reported that he first began experiencing tinnitus while in service. The examiner diagnosed tinnitus and opined that this was less likely than not caused by the Veteran’s military service. As rationale for this opinion, the examiner wrote that the Veteran did not incur impaired hearing or significant threshold shifts in either ear during his military service. As there was no hearing loss or threshold change, then there was no noise injury. In order to opine that the tinnitus was caused by military service, one would have to accept the scientifically unsubstantiated premise that tinnitus is related to some undiagnosed, latent noise injury. Such an opinion would directly contradict the objective audiometric testing. Initially, the Board notes that tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, while the Veteran’s service treatment records are negative for specific complaints of tinnitus, the Veteran is competent to report a history of tinnitus that began in service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of tinnitus symptoms. He is also competent to comment on the onset and frequency of his tinnitus. Lay evidence can be competent and sufficient evidence to establish etiology if the layperson is competent to identify the medical condition and lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson; Jandreau. Here, under Charles the Veteran is competent to identify the medical condition of tinnitus and his lay statements describe tinnitus beginning in service supports the later diagnosis by the March 2015 VA examiner. While the March 2015 VA examiner opined that the Veteran’s tinnitus was not related to his in-service noise exposure as tinnitus cannot exist without a noise injury, the Board finds that this rationale is flawed. Indeed, the Veteran’s in-service noise injury has been conceded. As such, the Board finds that the March 2015 opinion is not probative. In this case, affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s competent and credible lay evidence is sufficient to establish a nexus between service and tinnitus and service connection for tinnitus is warranted. 38 C.F.R. § 3.303(a). REASONS FOR REMAND 1. Service connection for a right knee disorder is remanded. With regard to the right knee issue, during the June 2018 Board hearing, the Veteran testified that he injured his right knee (specifically his knee cap) while playing football in 1948 and was hospitalized for this injury. He also contends that he was treated with cortisone injections for right knee pain as early as the 1970s. While the Veteran’s service treatment records show that he was treated for a sprain, moderately severe, right quadriceps femoris in October 1948, there is no indication that the Veteran was hospitalized for this or any other injury. Furthermore, there are no private treatment records from the 1970s, or any post-service private medical records for that matter until March 2014. The earliest post-service VA treatment records are dated in March 2015. As such, an attempt should be made to secure any outstanding service treatment records, including any records of hospitalization, and any post-service treatment records regarding treatment for the right knee in the 1970s. Furthermore, a March 2015 VA knee examiner diagnosed right knee osteoarthritis, status post total knee replacement, and opined that the Veteran’s current right knee disorder could not be related to the acute and transient right quadriceps muscle strain sustained while in service as there was no anatomical or medical nexus between the two. Instead, the VA examiner suggested that the Veteran’s right knee disorder is due to his advanced age, noting that advanced age is one of the strongest risk factors associated with osteoarthritis. Following the March 2015 VA opinion, the Veteran submitted an October 2017 statement from Dr. A.T. Dr. A.T. wrote that the Veteran spent much of his 20 years of service climbing in and out of aircraft and that the Veteran believed that his knee pain is the result of his work on the aircraft. Significantly, Dr. A.T. opined that it was very likely that the Veteran’s time in the military caused, or at least contributed to, many of his medical problems, including his lower extremity pain. Unfortunately, the RO has not yet reviewed the October 2017 opinion, nor has the March 2015 VA examiner had the opportunity to comment on this conflicting medical opinion. On remand, the RO should consider this evidence along with any additional evidence obtained pursuant to the request for outstanding records above, and if warranted, obtain an addendum medical opinion concerning this issue from the March 2015 VA knee examiner. 2. Service connection for hypertension is remanded. With regard to the hypertension issue, during the June 2018 Board hearing, the Veteran testified that he was first experienced elevated blood pressure readings at the end of his military service and was directed to seek follow-up treatment through VA after his discharge. He also contends that he was subsequently diagnosed with hypertension in 1972, just five years after his discharge from service in 1967. The Veteran’s service treatment records are negative for elevated blood pressure readings. Furthermore, there are no private treatment records from the 1970s, or any post-service private medical records for that matter until March 2014. The earliest post-service VA treatment records are dated in March 2015. As such, an attempt should be made to secure any outstanding service treatment records and any post-service private treatment records regarding treatment for hypertension since the 1970s. Furthermore, a March 2015 VA hypertension examiner diagnosed hypertension (noting an onset of 1970) and opined that the Veteran’s hypertension is less likely than not due to the Veteran’s military service. As rationale for this opinion, the examiner wrote that the Veteran’s service treatment records are negative for any indication of hypertension and that isolated, mildly elevated blood pressure is not the same as hypertension. Significantly, the examiner noted that essential hypertension has no clear cause and is thought to be linked to genetics or family history, poor diet, lack of exercise, etc. Essential hypertension does not have an apparent cause and most people have essential hypertension. Following the March 2015 VA opinion, the Veteran submitted an October 2017 statement from Dr. A.T. Dr. A.T. wrote that the Veteran’s blood pressure started becoming elevated during the end of his military career in the late 1960s and, by 1972, he was officially diagnosed with hypertension and had been on medication since that time. The Veteran believed that his military service contributed to the rise in his blood pressure. Significantly, Dr. A.T. opined that it was very likely that the Veteran’s time in the military caused, or at least contributed to, many of his medical problems, including his hypertension. Unfortunately, the RO has not yet reviewed the October 2017 opinion, nor has the March 2015 VA examiner had the opportunity to comment on this conflicting medical opinion. On remand, the RO should consider this evidence along with any additional evidence obtained pursuant to the request for outstanding records above, and if warranted, obtain an addendum medical opinion concerning this issue from the March 2015 VA hypertension examiner. The matters are REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), or any other appropriate repository of records, and request the Veteran’s complete service treatment records, to include any separately held records corresponding to a period of hospitalization regarding the right knee in 1948. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records pertaining to treatment for his right knee and/or hypertension since the 1970s. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After the above-requested development as been completed, to the extent possible, obtain an addendum opinion from the March 2015 VA knee/hypertension examiners, or, if those examiners are unavailable, to another suitably qualified examiner. The examiners are requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post- service medical records, and lay statements. An explanation for the opinions expressed must be provided. diagnosed right knee disorders or hypertension manifested during service, or are otherwise causally or etiologically related to his military service, including his alleged symptoms therein and since that time. The examiners should consider any newly obtained medical records, the October 2017 opinion from Dr. A.T., as well as the Veteran’s statements of in-service symptoms and symptoms since discharge, which are presumed credible, although if there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel