Citation Nr: 18148767 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-43 672 DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a psychiatric disability to include mood disorder is denied. REMANDED Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT 1. There is no competent evidence of record that reflects the Veteran suffers from a current bilateral hearing loss disability. 2. The preponderance of the evidence fails to establish the Veteran’s current tinnitus is related to his active service. 3. The preponderance of the evidence fails to establish the Veteran’s current psychiatric disability to include mood disorder is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303 (2017). 2. The criteria for service connection for tinnitus has not been satisfied. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for entitlement to service connection for a psychiatric disability to include mood disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to February 1969. The Board has recharacterized the Veteran’s claim as one for an acquired psychiatric disorder based on a diagnosis of depression found in his VA treatment records. See Clemmons v. Shinseki, 23 Vet. App. 1, 6 (2009) (VA has an obligation to consider whether possible mental disorders are service connected if those disorders are indicated by the evidence in the record even if the Veteran’s claim does not specifically identify those disorders). Service Connection 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he in entitled to service connection for bilateral hearing loss. See VA Form 21-526, Veteran’s Application for Compensation or Pension. Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). For the purposes of applying the law 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, or 4000 Hertz (specified frequencies) 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 “the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Board notes that the Court’s directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may 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). Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (“ASA”). However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 Accordingly, the tables will show the ASA measurements recorded in service, with the comparable ISO measurements in parentheses. Factual Background The Veteran’s service treatment records (STRs) reveal no complaint, diagnosis, or treatment for hearing loss. In the November 1965 entrance examination, the Veteran had normal clinical findings for his ears and his whispered voice test reflected that his hearing was 15 out of 15 bilaterally. See November 1965 Examination in STR-Medical. The audiological evaluation taken in November 1965, revealed pure tone thresholds, in decibels, with ISO measurements in parentheses as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 0 (10) 10 (20) 5 (10) LEFT 5 (20) 5 (15) 5 (15) 5 (15) 5 (10) The Veteran’s physical profile, summarized on the entrance examination report with the acronym “PULHES” (Physical capacity/stamina, Upper extremities, lower extremities, Hearing/ear, Eyes, Stability) reflects a “1” for hearing, which is indicative of normal hearing. Id. The Veteran was also provided a manual audiometric examination in May 1967 as part of his pararescue qualification examination. The examination noted that the Veteran had noise exposure as a jet mechanic and that he did not have hearing protection. The audiogram indicated, pure tone thresholds with ISO measurements in parentheses, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 10 (20) 0 (10) 10 (20) 5 (10) LEFT 10 (25) 10 (20) 0 (10) 10 (20) 10 (15) See May 1967 Audiological Examination, in STR-Medical. During his separation examination in January 1969, the Veteran was provided an audiogram. The authorized audiological evaluation, revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -5 (5) -5 (5) Not tested -5 (0) LEFT 0 (15) 0 (10) -5 (5) Not tested -5 (0) The Veteran’s bilateral hearing was 15 out of 15 on the whispered voice test. See January 1969 Audiological evaluation, Service Treatment Records (STRs) – Medical. The Veteran also denied hearing loss and ear trouble at the time of his separation examination. Id. Post-service VA treatment records indicate the Veteran complained of difficulty hearing at a VA Audiology consult in May 2012. See VA Audiology Consult in CAPRI, received on April 2013. The Veteran also reported constant that he had 30 years of post-service occupational noise exposure from working as an aircraft mechanic. The VA Audiogram results were not uploaded for the claims file but the Veteran was assessed with normal hearing at 250hz to 4000hz and word recognition ability was noted to be excellent. Id.   The Veteran was provided a VA examination in September 2013 in connection with his hearing loss claim. See VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The audiometric testing taken during the examination revealed the Veteran’s thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 30 30 LEFT 10 5 10 35 35 The audiological examination findings show the left ear with 96 percent speech recognition and the right ear with 96 percent speech recognition. Id. The examiner diagnosed the Veteran with sensorineural hearing loss at 6000 hertz bilaterally. Id. The examiner also opined that the Veteran’s hearing loss was less likely than not related to his active service. Id. In his rationale, the examiner noted that the Veteran’s STRs documented normal hearing examinations. Analysis After a careful review of the record, the Board finds that the Veteran’s hearing loss does not meet the requirements for establishing hearing loss as a disability for VA purposes. Specifically, the Veteran does not demonstrate a current hearing loss disability as defined by VA regulations. 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 Veteran’s audiological testing confirms his speech recognition test scores were above 94 percent. Additionally, the Veteran’s auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz were not 40 decibels or greater; and the Veteran did not have auditory thresholds of at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz equal of greater than 26 decibels. Accordingly, the Board finds that the first element of service connection has not been met. Without evidence of a current hearing disability, the Board need not address the other elements of service connection. See 38 U.S.C. § 1110 (2012); Degmetich v. Brown, 104 F. 3d 1328 (1997) (the existence of a current disability is the cornerstone of a claim for VA disability compensation); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of evidence of a present disability, there can be no valid claim); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (stating “[w]ithout a current disability, of course, there can be no service connection and, thus, no disability compensation.”) Therefore, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Thus, the Veteran’s service connection claim for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus The Veteran contends that he is entitled to service connection for tinnitus. See VA Form 21-526. Factual Background The Veteran’s STRs contain no complaints or diagnosis of tinnitus. The Veteran’s Form DD 214 confirms that he served on active duty as a Jet Engine Mechanic. In April 2013, the Veteran reported constant bilateral tinnitus for the past 11 years. See VA Audiology Consult in CAPRI, received on April 2013. During the September 2013 VA examination, the Veteran also reported tinnitus for the past 12-13 years. See VA Hearing Loss and Tinnitus DBQ. He was assessed with tinnitus. The examiner opined that the Veteran’s tinnitus was likely than not related to active service military noise exposure. The examiner’s stated rationale for a negative opinion was based on “no complaint of tinnitus, no indication of permanent inner ear involvement at exit of service and the veteran’s 31 years of occupational noise exposure after service.” Id. Analysis The Board finds that based on the evidence of record, the Veteran has a current disability of tinnitus. During the September 2013 VA examination, the Veteran reported he has had tinnitus for the past 12 to 13 years. The Veteran is competent to report tinnitus. A lay person can observe tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). According the first element of service connection is met. Second, considering the Veteran’s service medical and personnel records which confirm he worked as a jet engine mechanic, the Board accepts his contention of harmful noise exposure in service. 38 U.S.C. § 1154(a). Thus, the second element of service connection is met. Unfortunately, the third element, the nexus, which is the connection between a current disability and an in-service event has not been met. The VA examiner opined that the Veteran’s tinnitus is not related to active service because there was no complaint or diagnosis of tinnitus during active service and at the time of separation. Given that there was no tinnitus found in service and no “permanent inner ear involvement at exit of service”, the examiner concluded that the Veteran’s tinnitus is not related to service. The examiner also noted that the Veteran had significant post-service occupational noise exposure. Thus, the Board finds the examiner’s opinion is supported by adequate rationale and is entitled to probative weight. Importantly, this medical opinion is uncontroverted by any medical evidence of record. In fact, the Veteran has not submitted any medical evidence supporting his contention that tinnitus was due to or the result of his active service. Moreover, the Veteran, in the exam stated that his disability started 12 to 13 years earlier, which is more than thirty years after he separated from service. While the Veteran is competent to state that he has tinnitus, the Board finds that his lay statement that it is related to service is outweighed by the medical evidence of record. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the Board finds the specific issue here, the etiology of tinnitus, which were diagnosed decades after active service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 (2007). Essentially, the record does not demonstrate that the Veteran has special training or acquired any medical expertise in evaluating tinnitus was due to his military noise exposure, which the Veteran stated in his September 2013 examination. See King v. Shinseki, 700 F.3d 1339, 1345 (2012). Because the VA medical opinion, which was unable to link the Veteran’s current disability to his in-service noise exposure, was based on medical expertise and review of the record it carries more probative weight. Accordingly, the preponderance of the evidence weighs against a finding that the Veteran’s current tinnitus related to his service. As such, service connection is denied on a direct basis. The Board also considered whether the Veteran’s tinnitus could be service connected on a presumptive basis. However, service connection is also not warranted on a presumptive basis. The Veteran’s separation examination was silent for complaint of tinnitus and there are no post-service treatment records indicating complaints of tinnitus. Notably, the Veteran did not complain of tinnitus until August 2013, which is 44 years after active service. He was subsequently diagnosed with tinnitus at the September 2013 VA examination, which is decades after his separation from service. The Board also notes that the Veteran reported during the VA examination that he began having problems with tinnitus 12 to 13 years ago. Thus, the most persuasive evidence of record, specifically the service records and post-service medical evidence, does not show that the Veteran’s tinnitus had its onset within one year after discharge from active service or that he experienced tinnitus continuously after discharge from service. Therefore, service connection is not warranted for tinnitus on a presumptive basis. Although the Board, once again, acknowledges the Veteran’s lay statements that his current tinnitus is related to his in-service noise exposure, the Board finds that the Veteran is not competent to medically attribute his tinnitus to his in-service noise exposure; such an etiology determination requires medical expertise, which the record does not show he has. See 38 C.F.R. 3.159 (a)(1) versus (a) (2). Thus, chronicity and continuity of symptomatology since service are not established. Based on the above, the Board finds that service connection for tinnitus is not warranted on either a presumptive or direct basis. In reaching this conclusion, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5170(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, the Veteran’s service connection claim for tinnitus is denied 3. Entitlement to service connection for a psychiatric disability to include mood disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. Factual Background The Veteran filed a claim for service connection for an acquired psychiatric disorder in November 2013. See November 2013 Correspondence. The Veteran’s STRs are silent for any complaints or diagnosis related to any psychiatric disabilities. The Veteran’s entrance examination indicated normal psychiatric clinical findings. See November 1965 Examination, STR-Medical. The Veteran also denied symptoms of depression, excessive worry, or nervous trouble of any sort. Id. The Veteran’s separation examination was also clinically normal for psychiatric conditions. The Veteran also denied symptoms of depression, excessive worry, loss of memory, or suicide attempts. Id. The Veteran’s VA treatment records confirm the Veteran was diagnosed with a psychiatric disability. He first reported symptoms of depression in August 2005. See August 2005 VA Primary Care Note, in CAPRI received on April 2013. In July 2007, the Veteran reported that he was prescribed citalopram by his private physician. See July 2007 VA Primary Care Note, id. In a March 2015 VCAA Notice of Acknowledgement, the Veteran confirmed he had no additional evidence to submit with regard to his claim for a psychiatric disability. Analysis The Board finds that the Veteran has a current psychiatric disability as confirmed by the VA treatment records which show he was treated for depression. Thus, the first element of service connection is met. However, the Board finds that there is no evidence of an in-service occurrence, injury or disease. As noted above, the Veteran’s STRs were silent for any complaint or diagnosis of any psychiatric disability, and the Veteran denied any psychiatric symptoms at his separation examination. Additionally, the Veteran has not provided any statements regarding an in-service occurrence. Thus, the second element of service connection is not met. Based on the above, the Board finds that a VA examination is not warranted. A medical examination is necessary when there is (1) “competent evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or disease,” and (3) an “indication” that the disability or symptoms may be associated with service, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A (d)(2). Here, although the Veteran has a current disability, there is no evidence of an in-service event, injury or disease. Accordingly, the low threshold for a VA examination has not been met due to lack of an in-service occurrence. As there is no in-service injury, event, or disease, there can be no existence of a causal relationship between the Veteran’s current acquired psychiatric disorder and an in-service injury, event, or disease. Thus, a discussion of the lack of a nexus is not necessary. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder is denied. REASONS FOR REMAND 1. Entitlement to service connection for a heart disease is remanded. A remand is warranted for a new VA medical opinion because the August 2013 VA medical opinion is inadequate for the reasons discussed below. The Veteran contends that his current heart disability is due to his active service, to include exposure to herbicides while serving in the Republic of Vietnam during the Vietnam Era. In the August 2013 VA examination, the VA examiner found that the Veteran had ischemic heart disease (IHD). See VA Ischemic Heart Disease Disability Benefits Questionnaire (DBQ). The examiner also noted the following diagnosis: cardiomegaly, cardiac dysrhythmia, and wide complex tachycardia. Id. However, in providing a medical opinion the examiner stated, “VETERAN’S [sic] HEART DISEASE IS NOT AS LIKELY AS NOT ISCHEMIC HEART DISEASE AND THEREFORE NOT DUE TO, CAUSED BY OR INCURRED IN MILITARY SERVICE AS A RESULT OF EXPOSURE TO AGENT ORANGE.” This opinion is unclear because the examiner first indicated the Veteran had IHD but in her opinion, states the Veteran does not have IHD. The examiner did not provide any additional rationale or explanation for the inconsistent findings regarding IHD. Because the examiner’s opinion is confusing and incomplete, a new VA medical opinion is warranted to determine whether the Veteran has IHD. A new VA medical opinion is also warranted because the August 2013 VA examiner failed to provide an etiology of the Veteran’s current heart disabilities. Finally, the examiner also failed to consider whether the Veteran’s current heart disorders may be directly related to his active service, to include as due to his conceded exposure to herbicidal agents such as Agent Orange. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, the Board must remand this issue for an adequate VA medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, development to obtain any outstanding medical records pertinent to the Veteran’s claims should be completed. The matter is REMANDED for the following action: 1. The Regional Office (RO) should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the record is developed, all pertinent evidence of record must be made available to and reviewed by an appropriately qualified health care professional. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. 3. The examiner should review the entire record, including service treatment records, post-service treatment records, a copy of this Remand and the Veteran’s contentions. The examination report should indicate that these items were in fact reviewed. (a.) Based on the review of the record and the examination results, the examiner should clearly identify all heart disorders that have been present during the period of the claim. (b.) The examiner should also specifically state whether or not the Veteran has IHD and provide rationale for his or her conclusion. (c.) With respect to each diagnosed heart disorder, to include cardiomegaly, cardiac dysrhythmia, wide complex tachycardia, and any other diagnosed heart disorder, the examiner should provide a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder originated during service or is otherwise etiologically related to the Veteran’s service, to include his presumed herbicide exposure. (The Board notes that the Veteran’s exposure to herbicidal agents such as Agent Orange is conceded). For purposes of the opinion, the examiner should assume that the Veteran is a credible historian. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page)   Another examination of the Veteran should only be performed if deemed necessary by the examiner providing the opinions. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel