Citation Nr: 18150059 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-27 264 DATE: November 14, 2018 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for a back condition is remanded. FINDINGS OF FACT 1. The evidence of record is against a finding that the Veteran has a bilateral hearing loss disability for VA purposes that had onset in, or is otherwise related to in-service noise exposure. 2. The evidence of record is against a finding that the Veteran’s tinnitus had onset in, or are otherwise related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1972 to April 1975. In April 2018, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of hearing is associated with the claims file. The Board notes that at the hearing, the undersigned afforded the Veteran a 30-day continuance to obtain and submit medical evidence in support of his claim. Within one month, the Veteran’s representative requested 60 days for additional submission of evidence. In July 2018, the Veteran’s representative submitted a treatment report pertaining to lower extremity neurological impairment. The extension period requested has long elapsed, and the Veteran has submitted no further evidence. The Board therefore will proceed with adjudication. 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. The Veteran claims entitlement to service connection for a bilateral hearing loss disability and for tinnitus due to injury sustained during active service. Specifically, the Veteran asserts that he sustained significant noise exposure during service due to working in a warehouse around heavy equipment and a supply specialist. See April 2018 Hearing Transcript. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication. Initially, the Board notes that the Veteran has a current tinnitus disability. See April 2013 VA Examination; April 2018 Hearing Transcript. However, the evidence is against a finding that he has a bilateral hearing loss disability as defined by VA under the provisions of 38 C.F.R. § 3.385. Indeed, upon examination in April 2013, testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 10 15 LEFT 15 15 25 15 25 Speech audiometry revealed speech recognition ability of 96 percent, bilaterally. Although indicative of some level of diminished hearing acuity, the April 2013 VA examination audiometric test results and speech recognition scores do not show that the Veteran’s hearing loss is so severe as to meet the threshold requirements to constitute a bilateral hearing loss disability as defined by VA under 38 C.F.R. § 3.385. There are no other hearing tests of record. The Board recognizes that at the April 2018 hearing, the Veteran indicated that he thought his hearing loss may have worsened in severity since April 2013. The Veteran is certainly competent to attest to his observable symptoms, such as worsening hearing acuity and tinnitus. That stated, even assuming that a current hearing loss disability for VA purposes now exists, and recognizing that tinnitus does currently exist, the evidence of record is against a finding that both hearing loss and tinnitus would be related to in-service noise exposure. Indeed, the April 2013 VA examiner highlighted the fact that the Veteran exited service with hearing thresholds within normal limits, without significant changes in hearing thresholds between enlistment and separation. Importantly, the examiner then explained the clinical significance of normal hearing acuity upon separation from service, and why these in-service test results bear on the key question of nexus in this Veteran’s case. Indeed, the VA examiner stipulated that current knowledge of cochlear physiology suggests that noise-induced hearing loss and tinnitus manifest immediately after noise exposure, and that there was no sufficient scientific basis for the existence of delayed onset hearing loss. Thus, he opined, that both the Veteran’s hearing loss and tinnitus were less likely than not a result of noise exposure during military service. A clear inference to be drawn from the VA examiner’s medical opinion is that had in-service noise exposure caused the Veteran’s current hearing and tinnitus problems, such would have been identifiable immediately at the time he was examined in service. Because in-service hearing tests contemporaneous with the claimed in-service noise exposure were normal, the examiner concluded that in-service noise exposure did not cause any current hearing loss or tinnitus disability, citing to medical literature in support of his findings. To the extent the Veteran has asserted at the April 2018 hearing that his hearing loss and tinnitus began in service and have steadily worsened since that time, the Board finds such statements to be not credible in light of prior inconsistent statements to the contrary. Notwithstanding the fact that his service treatment records include normal hearing tests, and a “normal” clinical evaluation of the ears upon separation from service, at a June 6, 2011 consult with his private physician, Dr. G.I., the Veteran specifically responded “No” when asked if he had “decreased hearing,” “ringing in the ears,” “earache,” or “hearing loss.” The Veteran denied “ringing in the ears” and “decreased hearing” again at an October 10, 2011 assessment with Dr. G.I. At a third May 26, 2012 assessment, Dr. G.I. noted that the Veteran had “normal” hearing, and the Veteran again responded “No” when asked if he had “decreased hearing,” “ringing in the ears,” or “earache.” At his April 2013 VA examination, the Veteran reported to the examiner that the “ear ringing” he experienced had begun five years prior to the examination. The Board places greater weight of probative value on the history the Veteran presented to medical professionals for treatment purposes (i.e., during active service and years thereafter) than it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). In addition, the Veteran’s history of prior inconsistent statements weighs against his credibility. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a veteran) Based on the above, the Board finds that a preponderance of the lay and medical evidence of record weighs against the claims for service connection for a bilateral hearing loss disability and for tinnitus, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a back condition. The evidence indicates that there may be outstanding relevant VA treatment records that have not yet been associated with the Veteran’s file. During a February 2013 VA back examination, the Veteran reported that he was treated for his back condition at a VA Medical Center in Memphis, Tennessee, following service. On remand, efforts should be made to obtain any outstanding VA treatment records dating back to service. Further, although the Veteran received a “normal” clinical evaluation of the spine upon entry into service, he reported at the time that he suffered an acute back sprain prior to service in 1971 with recurrent back pain. He subsequently suffered a lumbar strain during service, and complained of, and received treatment for back pain. Given that the Veteran is presumed sound upon entry into service, the Board believes an additional medical opinion should be obtained, utilizing the correct standards, so the Board can determine whether the presumption of soundness in this case is rebutted, and if not, whether the disability can be directly related to service. The matters are REMANDED for the following action: 1. Obtain all of the Veteran’s relevant VA treatment records not currently of record, to include treatment at the Memphis VAMC dating back to 1975. If such records are unavailable, this should be clearly noted. 2. Ask the Veteran to submit, or authorize VA to obtain on his behalf, and records of private care for his back that are not currently of record. 3. Obtain a medical opinion from a VA physician addressing the etiology of the Veteran’s back disability. No further examination of the Veteran is necessary unless the examiner determines otherwise. The examiner must review the entire claims file. The examiner is asked to provide an opinion responding to the following questions: (A) Is it clear and unmistakable (i.e., undebatable) that the Veteran’s back disability existed prior to his entrance into active duty in April 1972? (B) If the answer to Question (A) is “yes,” is it also clear and unmistakable (i.e., undebatable) that the Veteran’s back disability was NOT aggravated beyond its natural progression during his period of active service from April 1972 to April 1975? (C) If the answer to either Question (A) or Question (B) is “no,” assume as true that the Veteran entered service in April 1972 in sound condition, and that his back disability did not pre-exist service. With this assumption in mind, is it at least as likely as not (50 percent or greater probability) that the Veteran’s current back disability had its onset in, or is otherwise related to the Veteran’s period of active duty service? (Continued on Next Page) 4. Readjudicate the appeal. If the benefit sought remains denied, issue the Veteran and his representative a Supplemental Statement of the Case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel