Citation Nr: 18149110 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-38 604 DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss (BHL) is granted. Entitlement to service connection for tinnitus, recurrent is granted. REMANDED Entitlement to service connection for lumbosacral or cervical strain (claimed as back condition) is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of BHL which has been continually present since his military service. 2. The Veteran has a current diagnosis of tinnitus which has been continually present since his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for (BHL) have been met. 38 U.S.C. §§ 1131; 38 C.F.R. §§ 3.303, 3.304, 3.07, 3.309, 3.385, 4.85. 2. The criteria for entitlement to service connection for tinnitus, recurrent have been met. 38 U.S.C. §§ 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Navy from February 1956 to September 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a videoconference hearing in October 2018; he was sent hearing notification letters in September 2018 and October 2018, which were not returned as undeliverable. The Veteran failed to appear for the scheduled hearing and has not since submitted good cause for failure to appear and/or asked for it to be rescheduled. As such, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.702 (d). Entitlement to service connection for BHL and tinnitus, recurrent The Veteran contends that his BHL and tinnitus is the result of exposure to acoustic trauma while serving in the Navy. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). 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 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, 5 Vet. App. at 159. As an initial matter, the Board finds that the Veteran’s contentions regarding his in-service noise exposure to be competent and credible. Specifically, in his September 2015 Notice of Disagreement, the Veteran asserted that he was exposed to excessive noise as a gunner’s mate. The Veteran says that he was subjected to gun fire, cannon fire, and anti-aircraft guns abroad his ship. He added that he was not supplied with any hearing protection while serving in the Navy. The Veteran repeated the same assertions regarding noise exposure in his October 2015 VA Form 9. The Veteran’s military personnel records confirm his military occupational specialty (MOS) as a gunner’s mate while serving aboard the USS Mount McKinley. His MOS is consistent with the Veteran’s claim of noise exposure. Therefore, the Board acknowledges that the Veteran was exposed to loud noise in service. The Board finds that the evidence of record shows that Veteran was exposed to acoustic trauma in-service and his symptoms of hearing loss and tinnitus continued after separating from service. The Veteran’s service treatment records are silent as to complaints of hearing loss. The Veteran’s February 1956 enlistment exam and September 1959 separation exam do not include any results of audiometric testing. The exams show that the Veteran scored a 15/15 on the whispered voice test; however, the Board notes that the whispered voice tests are inaccurate and unreliable. See Veterans Benefits Administration Training Letter 211D (10-02), dated March 18, 2010; Adjudication Procedure Manual M21-1 (M21-1), Part III, Subpart iv, Chapter 4, Section B, Subsection 4, Paragraph g. In the October 2015 VA Form 9, the Veteran asserted that he has had hearing problems for years and his hearing loss began in-service. He also stated that it was apparent to him that he had hearing loss within a year of separating from service. The Veteran is competent to report such symptoms as decreased hearing acuity that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The first documentation of hearing loss is in May 1980. Medical documentation provided by the Veteran shows that his hearing has progressively deteriorated since 1980. As to tinnitus, medical documentation shows that the Veteran complained of “ringing in the ears” or “buzzing in the ears” as early as August 2004. As to current findings of hearing loss and tinnitus, the Board finds that the Veteran has hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in May 2014. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 35 70 70 75 LEFT 10 45 85 90 85 Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 86 in the left ear. While the audiometric testing conducted in May 2014 shows diagnoses of BHL and tinnitus, the examiner opined that the Veteran’s hearing loss was less likely than not related to his exposure to noise during service. The rationale provided for the opinion was that there were no complaints of hearing loss included in the service treatment records and medical literature found insufficient scientific basis to conclude that permanent hearing loss develops long after noise exposure. The examiner also concluded that the Veteran’s hearing is likely due to the Veteran’s post-service occupational exposure as a mechanic for John Deere and his recreational noise exposure from shooting, lawn care, and woodworking. With regard to the Veteran’s claim for tinnitus, the VA examiner significantly opined that the Veteran’s tinnitus is at least likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. However, the Board gives minimal probative value to the VA examiner’s opinion as to the hearing loss. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Court also has held that the absence of contemporaneous records is insufficient rationale for a medical nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The VA examiner rested their opinion on the lack of evidence of hearing loss in the Veteran’s service treatment records without acknowledging the fact that there were no results from audiometric tests. More importantly, the examiner failed to account for the Veteran’s contentions that he began to experience hearing loss in service and continued experiencing hearing loss immediately after separation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Available evidence shows that Veteran’s hearing loss progressed over time. Further, delayed onset of hearing loss for VA purposes is not a bar to granting service connection. Hensley, 5 Vet. App. at 159. In sum, the Veteran credibly contends that he incurred BHL and tinnitus during active service due to noise exposure as a gunner’s mate. The Board has conceded that the Veteran was likely exposed to acoustic trauma in-service. The record evidence also shows that the Veteran has a current condition of BHL and tinnitus sufficient for VA purposes. Additionally, the Board has found that the only medical opinion of record dated in May 2014 addressing the contended etiological relationship between bilateral hearing loss and active service to be not probative. Therefore, the Board presumes that the Veteran’s hearing loss was incurred in-service based on the continuity of reported symptoms of hearing loss. As to the tinnitus, there is a positive opinion of record which found that the tinnitus is a result of the Veteran’s hearing loss. The Board concludes that service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. §§ 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385, 4.85. REASONS FOR REMAND Entitlement to service connection for lumbosacral or cervical strain (claimed as back condition) The Veteran contends that his current back condition is due to carrying 100 pound bags of potatoes aboard his ship while serving in the Navy. The Veteran also contends that he went to the dispensary aboard the ship for treatment. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. For the below noted reasons, the Board finds that the Veteran’s claim needs to be returned to the RO for further development. In the VA Form 9 dated October 2015, the Veteran contends that he went on sick call aboard the ship for his back condition and he believes these records are included in the deck logs. The Veteran was stationed aboard the USS Mount McKinley between June 1956 and September 1959. The deck logs from the ship are not associated with the claims file. A remand is necessary to obtain the complete set of deck logs to determine whether the Veteran’s current back condition had its onsest in-service. Medical records provided show that the Veteran’s current back condition was first noted and treated in November 1972. The Veteran was diagnosed with a lateral flexion malposition of L-3, rotational malposition of L-5, and hyperflexion of L-5. A June 1998 hospital discharge summary also includes a diagnosis of excoriating back pain with degenerative disc disease, L5, SI with probable secondary midline herniated lumbar disc. Records showed continued treatment for a back condition with the most recent records of treatment dated July 2012. The evidence shows that the Veteran has a current back condition and contentions by the Veteran that the condition is the result of carrying large bags of potatoes while in-service. However, the Veteran has not yet been afforded a VA examination for the purpose of determining whether his current back condition is related to his military service. As the McLendon elements necessitating an examination have been met, a remand is necessary to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following actions: 1. Obtain deck logs for the USS Mount McKinley (AGC – 7) from June 1956 to September 1959. 2. After completing the above, schedule the Veteran for an examination, based upon the recommendation, from an appropriate clinician to determine the nature and etiology of his claimed back condition. After reviewing the entire claims file, the examiner should: Identify all diagnoses of a low back condition. The examiner should also address the Veteran’s reports of pain in his back and opine on whether pain causes functional impairment. As to each diagnosis, opine as to whether it is at least as likely as not (50 percent probability or greater) that such disability is related to the Veteran’s military service, to include his reported low back pain after lifting large bags of potatoes aboard the ship. In offering any opinion, the examiner should consider the private treatment records including the showing that the Veteran was diagnosed with a back condition as early as November 1972, the June 1988 diagnosis, and the remaining private medical documentation of continued complaints and treatment for a back condition after separation from service. Any opinion expressed should be accompanied by a complete rationale.   3. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel