Citation Nr: 18148328 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 10-27 412A DATE: 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for a respiratory disability, to include sinus pharyngitis. November 7, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. REMANDED Entitlement to service connection for a respiratory disability, to include sinus pharyngitis, is remanded. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma in service. 2. The Veteran is competent to report having experienced hearing loss since his service and credibly reported such continuous hearing loss. 3. The evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss disability is related to his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 2002 to December 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board video conference hearing in March 2016. A transcript of that hearing has been associated with the claims file. This matter was last before the Board in September 2017 at which time it was remanded for further development. The Board notes that service connection for a low back disability was granted by the RO in a July 2018 rating decision. As such, that matter is no longer in appellate status and will not be addressed by the Board. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, as to the claim of service connection for a bilateral hearing loss disability, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Entitlement to service connection for a bilateral hearing loss disability The Veteran contends that his bilateral hearing was caused by or is otherwise related to his exposure to acoustic trauma while on active duty. Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or 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 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, 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). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means 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. 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 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). The Veteran contends he is entitled to service connection for a bilateral hearing loss disability. The Board concludes that while the Veteran’s bilateral hearing loss was not diagnosed during service and did not manifest to a compensable degree within the applicable presumptive period, there has been continuity of symptomatology since first manifesting during the Veteran’s service. An August 2004 Hearing Conservation Data notes a significant threshold shift in the Veteran's hearing. It was also noted that the Veteran was "routinely noise exposed" to "steady noise exposure". HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 55 40 20 LEFT 40 50 45 35 35 In a March 2005 Post-Deployment Health Assessment, the Veteran asserted that he was often exposed to loud noises. An April 2005 Hearing Conservation Data notes no significant threshold shift in the Veteran’s hearing. It was also noted that the Veteran had “steady noise exp[osure]”. Audiometry noted the following decibel thresholds. HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 10 10 LEFT 10 5 10 10 10 In a December 2005 report of medical history for separation, the Veteran reported a hearing loss. The Veteran was afforded a VA audiological examination in January 2008. The Veteran reported that he listens to a louder volume on the tv than others and must sit at the front of the class to hear the instructor. The Veteran reported military noise exposure from amphibious vehicles, particularly when they were onloading/offloading from his ship. The Veteran also reported that he was qualified in gun mount and was exposed to noise from M-60s and 50 caliber weapons. The Veteran further reported noise from chipping and grinding for routine ship maintenance. After leaving the service, the Veteran reported being a full-time student and working customer service at NAPA auto parts. The Veteran endorsed constant, bilateral tinnitus, describing it as a steady chime sound. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 5 5 LEFT 15 10 10 10 10 Speech audiometry revealed speech recognition ability of 100 percent in the left ear and 100 percent in the right ear. The Veteran’s hearing was described as clinically normal. The examiner concluded that the Veteran does not have a hearing loss and opined that, as such, his hearing loss and tinnitus were not caused by or a result of noise exposure during military service. The Veteran’s tinnitus was described as “normally occurring.” Here, the examiner based his rationale on a lack of current hearing loss, but failed to discuss the Veteran’s in-service threshold shift or the Veteran’s in-service noise exposure. As such, this opinion is of limited probative value. The Veteran testified at the March 2016 Board hearing that as a deck seaman in the Navy he was responsible for anchoring, amphibious assaults, dropping boats, recovering and launching vehicles and ship protection, all of which exposed him to loud noises and acoustic trauma. The Veteran stated that he noticed a hearing loss around the 2004 to 2005 timeframe and asserted that it has gotten worse. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2) (2017). This may include some medical matters, such as describing symptoms, but does not necessarily include opinions on the cause or etiology of any current disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran has alleged in-service exposure to acoustic trauma and that he noticed a hearing loss while in service. The Veteran is competent to testify to acoustic trauma experienced while in service and to any audiological symptoms experienced while in service, and as such, the Board considers the Veteran’s testimony to be credible. The Veteran was afforded a VA hearing loss examination in June 2016. Pure tone testing was performed, but the examiner noted that the results were not valid as the responses to pure tone stimuli were inconsistent and not repeatable and stated that the Veteran displayed several signs of functional overlay. Additionally, the examiner noted that the word discrimination scores were “out of line with behavioral observation. The Veteran reported difficulty understanding speech, often asking people to repeat themselves, and stated that others tell him his television is too loud. The Board notes that this examination is not adequate for service connection purposes. See, Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, it has no probative value. The Veteran was afforded a VA hearing loss examination in November 2017. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 30 35 40 LEFT 45 45 45 45 40 Speech audiometry revealed speech recognition ability of 94 percent in the left ear and 94 percent in the right ear. Bilateral sensorineural hearing loss was noted. The Veteran reported that his wife is always complaining everything is too loud when I have the TV on and accuses him of not listening to her. The examiner opined that the Veteran’s hearing loss is less likely as not due to his military service, with the rationale that, while the Veteran’s August 2004 service treatment record noted a significant threshold shift in hearing, he had normal hearing test results in January 2008. Here, the examiner provided no rationale other than to note a normal hearing examination in January 2008, and provided no opinion as to the etiology of the Veteran’s currently diagnosed hearing loss. Furthermore, the examiner did not discuss any post-service noise exposure. As such, the Board finds that this opinion is of no probative value. No VA examiner has offered a supporting opinion as to the etiology of the Veteran’s bilateral hearing loss disability. However, no VA examiner has addressed the Veteran’s assertions that his hearing loss has continued since he left the military. While the presumption of service connection does not apply in this case because there is no evidence of manifestation within one year of service, service connection for the recognized chronic disease can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). In this case, there is evidence of continuity of symptomatology since service. See 38 C.F.R. § 3.307 (a)(3); 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Although the Veteran first filed a claim for service connection for bilateral hearing loss in October 2007, the Veteran has consistently asserted that he was exposed to acoustic trauma from working on the deck of a Navy vessel, which is verified by service treatment records both acknowledging the Veteran’s noise exposure and documenting a significant threshold shift while in service. The Veteran has claimed both ringing in his ears and difficulties with hearing ever since service. See June 2016 Board hearing transcript. The Board finds the Veteran’s lay statements of record to be credible and competent evidence of continuity of symptomatology. Thus, following a review of the medical and lay evidence of record, the Board finds the evidence to be of at least equal weight, and resolves all reasonable doubt as to nexus in the Veteran's favor. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. Therefore, recognizing that continuity of symptomatology requires the chronic disease to have manifested in service, and resolving reasonable doubt in the Veteran's favor, the Board finds a nexus between the Veteran's current hearing disability and his in-service experience. See 38 C.F.R. §§ 3.303 (b), 3.309; see also 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2107). Accordingly, the Board recognizes the Veteran's current bilateral hearing loss and resolves reasonable doubt in the Veteran's favor to find that the evidence supports a grant of entitlement to service connection for a bilateral hearing loss disability. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS FOR REMAND Entitlement to service connection for a respiratory disability, to include sinus pharyngitis, is remanded. The Veteran was afforded a VA respiratory conditions examination in October 2017. The examiner stated that, based on the physical examination and review of the claims file, “there is no objective medical evidence suggestive of a respiratory condition”. The examiner further noted that the Veteran’s complaint pertains to a sinus pharyngitis condition, “which cannot be addressed on this DBQ.” The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified the scope of a claim on appeal by holding that when a Veteran files a claim he is seeking service connection for his symptoms, regardless of how those symptoms are diagnosed or labeled. In this case, the Veteran is seeking service connection for a problem with his breathing. As such, the Board finds that a remand is required for a new VA examination to determine the nature and etiology of the Veteran’s claimed respiratory disability, now to include sinus pharyngitis. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disability, to include sinus pharyngitis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine as to whether it at least as likely as not (1) began during active service, (2) manifested within [presumptive period] after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 2. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel