Citation Nr: 18147196 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-08 790 DATE: November 2, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes mellitus, type II is remanded. FINDINGS OF FACT 1. A current bilateral hearing loss disability for VA purposes is not shown. 2. The Veteran has a valid diagnosis of tinnitus, and first began experiencing tinnitus while in service and has experienced tinnitus persistently since active duty. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service, and such incurrence may not be presumed. 38 U.S.C. §§ 1101, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1141, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to October 1975. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Veterans Claims Assistance Act of 2000 (VCAA) 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 his 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 for Bilateral Hearing Loss and Tinnitus Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must 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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Court of Appeals for Veterans Claims held that “when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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 such as sensorineural hearing loss and tinnitus, 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, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases 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). Service connection for hearing loss can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be 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. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. 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 to be 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. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In the absence of proof of a current disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Evidence and Analysis – Bilateral Hearing Loss Disability The Veteran contends that exposure to loud noise during active service caused a claimed current bilateral hearing loss disability. Specifically, in statements from 2012 with his original claim, the Veteran asserted he served as a Navy sailor aboard ship as a mechanic working on boilers and other loud machinery below deck, and was exposed to loud noises during operations, training, and deployments. For this reason, he asserts that he is entitled to service connection for bilateral hearing loss. As the Veteran lacks a current diagnosis of bilateral hearing loss, and though VA concedes an in-service injury in the form of acoustic trauma, the preponderance of the evidence weighs against a finding that the Veteran has a claimed hearing loss disability is related to the acoustic trauma sustained in service. For this reason, the claim is denied. Current Disability First, the evidence of record does not demonstrate that the Veteran has a current bilateral hearing loss disability that comports with VA’s definition of disability resulting from hearing impairment. For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran has received a VA audiological examination that evaluated his hearing loss, in May 2014. For the May 2014 examination, none of the tested frequencies in either ear exceeded 40 dB, only the left ear 4000 Hz frequency exceeded 26 dB, and the average was 16 dB in the right ear and an average of 19 dB in the left ear. The Maryland CNC test was 96 percent in each ear. The examiner noted all frequencies and measurements pursuant to 38 C.F.R. § 3.385 were tested, and acoustic immittance, ipsilateral acoustic reflexes, and contralateral acoustic reflexes were all considered normal in the left ear, and the audiologist was unable to provide a finding for the right ear immittance due to artifact. Sensorineural hearing loss in the frequency range of 6000 Hz or higher was noted for each the right ear and left ear, but no sensorineural hearing loss was noted in the frequency range of 500 to 4000 Hz range for either ear. This May 2014 examiner also provided a negative nexus opinion for service connection, saying it was less likely than not, less than 50 percent probability, that any hearing loss was caused by or a result of an event in military service for each ear. The examiner’s rationale was that the Veteran’s hearing exhibited no change when comparing the entrance examination with the separation examination. The Veteran also received multiple private audiology examinations related to his civilian employment that are present in the claims file: March 2005, May 2009, October 2010, July 2011, May 2012, and March 2013. No speech recognition test was accomplished on any of those examinations, and thus, they are not qualifying for VA rating purposes. For these examinations, only the left ear 4000 Hz frequency exceeded 26 dB, and the worst average was 17 dB in the right ear and an average of 23 dB in the left ear. While these private audiology examinations are not valid for VA rating purposes, their puretone threshold readings are consistent over time with the valid May 2014 VA audiology examination described above. There are no other VA examinations of record or private examinations conforming to VA regulations that reveal hearing loss in either ear. The record establishes the Veteran has no current hearing loss considered disabling for VA purposes. The Board has conceded hazardous noise exposure while in service. However, the preponderance of the evidence is against the Veteran’s claim of service connection for hearing loss. The Veteran’s lay statements contrast with a finding of normal hearing from VA in May 2014. The Board notes there is no additional evidence in the Veteran’s favor, beyond his own statements. In the absence of proof of a current disability, there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board notes that the May 2014 VA audiologist opined that any hearing loss was less likely than not due to the Veteran’s active military service. The finding for service connection requires proof of a current disability, and the Veteran’s examinations for hearing loss do not reach the threshold of hearing loss for VA purposes. Thus, the preponderance of the evidence is against a finding of current hearing loss disability for VA purposes, and therefore service connection for a bilateral hearing loss disability is not warranted. 38 C.F.R. §§ 3.303, 3.385. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Evidence and Analysis – Tinnitus The Veteran has stated that during his service he was exposed to significant levels of noise in his military occupational specialty as a sailor serving aboard ship. Specifically, he has argued that his occupational specialty required him to operate and be around heavy machinery and vehicles, and he was exposed to loud generators, boilers, and other forms of hazardous noise during operations at sea and deployments. There is no evidence that the Veteran’s statements concerning noise exposure are not credible. As such, noise exposure in service has been shown. The Veteran is competent to testify to his own experiences. Further, the United States Court of Appeals for Veterans Claims (Court) has found that a layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds the Veteran’s claims to be credible and notes that his statements conform to his service personnel and service treatment records. Thus, noise exposure and acoustic trauma during service is conceded. At the May 2014 VA examination, the Veteran reported persistent tinnitus. That examination noted and diagnosed the Veteran’s current disability of tinnitus and noted that the tinnitus began just after active duty service. Thus, the evidence establishes a current disability of tinnitus. The May 2014 VA examiner did provide a negative opinion for service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran’s diagnosed tinnitus was related to military service. The examiner’s rationale was the Veteran’s service treatment records do not denote any evidence of tinnitus, and there is no report of a specific noise event or injury while on active duty. The Veteran did complain of the tinnitus impacting the ordinary conditions of daily life, including the ability to work. With respect to the final element of nexus, the Veteran has credibly stated that he has experienced tinnitus persistently since active duty. This testimony is sufficient to establish a nexus between the Veteran’s current tinnitus and the in-service incurrence. This is because for certain chronic disorders, shown as such in service, so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017). Tinnitus caused by acoustic trauma is considered is among the chronic diseases listed under 38 C.F.R. § 3.309(a) (2017). See Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). Therefore, a presumption of service connection for chronic diseases under 38 C.F.R. § 3.303(b) (2017) applies to this tinnitus claim, and the third service connection element is satisfied. The Board acknowledges a negative opinion for service connection for tinnitus in the May 2014 VA opinion, but also notes changes in law and regulation since then that negate the weight of that opinion. That 2014 opinion predates the current legal guidance from 38 C.F.R. §§ 3.303(b) and 3.309(a) (2017) and Fountain v. McDonald, 27 Vet. App. 258, 263 (2015); see also Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (stating that “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service”). Resolving all reasonable doubt in favor of the Veteran, his tinnitus cannot be satisfactorily disassociated from service. Thus, giving the Veteran the benefit of the doubt, all elements required to establish service connection for tinnitus have been satisfied, and service connection is warranted. 38 C.F.R. § 3.102 (2017). (Continued on next page.) REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for diabetes mellitus, type II is remanded. The Veteran is claiming entitlement to service connection for diabetes mellitus, type II, and hypertension. In addition, the Veteran has in multiple statements asserted that his diabetes resulted from hypertension, and elsewhere that his hypertension resulted from his diabetes. The Veteran received an examination in May 2014 for his hypertension. The examiner noted the Veteran’s history of hypertension in the claims file, including in VA treatment records, and remarked “unknown” regarding an initial diagnosis of hypertension or isolated systolic hypertension. However, the VA examiner also noted the Veteran’s initial diagnosis of hypertension in 1998 by VA and VA’s attempts to find and adjust the right hypertensive medications for the Veteran’s blood pressure, and noted that the Veteran should follow up with his primary care physician. The Board notes in VA treatment notes in the claims file from 2012 and 2013 that VA medical providers are actively treating the Veteran’s hypertension, noting that past readings were above 160/100, and make mention of hypertension logs that are not now part of the claims file. In a lay statement from the Veteran accompanying his August 2013 claim, he calls attention to his blood pressure reading on his separation examination of October 1975, recorded as 140/80, and that abnormal reading constitutes evidence that he had hypertension in service. The VA examiner noted that hypertension cannot cause diabetes but that diabetes can cause hypertension. VA treatment notes from 2012 and 2013 suggest an interrelationship between the two disorders in the Veteran. The Board considers this examination and opinion to be inadequate, and a new examination is necessary. A VA examiner provided an examination for the Veteran’s diabetes, also in May 2014. While a current diagnosis of diabetes was noted, the examiner only provided an opinion for secondary service connection for the Veteran’s diabetes mellitus type II, and not an opinion for direct service connection. VA treatment notes relating to the Veteran’s diabetes denote he has been examined for foot ulcers that may be related to the diagnosed diabetes. The examiner also noted that she considered the Veteran’s hypertension to be related to his diabetes as co-morbidities, without further explanation as to whether one is causing the other. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of “not due to,” “not caused by,” and “not related to” a service-connected... disability is “not due to,” “not caused by,” and “not related to” a service-connected disability is insufficient to address the question of aggravation. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate, or the Veteran informed as why one cannot or will not be provided. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000). The examination for the hypertension is considered inadequate, and therefore a remand is necessary for a new examination and opinion. For the diabetes, no opinion was provided for direct service connection, and a remand is necessary to gain an adequate opinion for both direct and secondary service connection. In addition, VA treatment notes and the May 2014 examiner appear to suggest that the Veteran’s diagnosed hypertension and his diabetes are interrelated. See Mittleider v. West, 11 Vet. App. 181 (1998). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. Attention is invited to mention of hypertension logs in VA treatment notes from February 2013 but that are not now present in the claims file. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. 2. Schedule the Veteran for a VA examination by an appropriate VA medical professional to determine the nature and etiology of the Veteran’s diabetes. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s diabetes is related to his active duty service, or are otherwise related to any in-service disease, event, or injury? 3. Schedule the Veteran for a VA examination by an appropriate VA medical professional to determine the nature and etiology of the Veteran’s hypertension disability. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s hypertension is related to his active duty service, or are otherwise related to any in-service disease, event, or injury? If not, is it at least as likely as not (probability of fifty percent or greater) that the hypertension disability was caused by the Veteran’s diabetes disability or any other service-connected disability? If the diabetes did not cause the hypertension disability, is it at least as likely as not (probability of fifty percent or greater) that the hypertension disability was aggravated (an increase in severity) by the diabetes or any other service-connected disability, to include the effects of medications? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the hypertension by any service connected disability. Attention is invited to the Veteran’s October 1975 separation examination, where he contends high blood pressure was noted. Attention is also invited to VA treatment notes of July 2012 and February 2013 that discuss the hypertension and diabetes conditions and their interrelationship. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel