Citation Nr: 18150695 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-15 505 DATE: November 15, 2018 ORDER The claim of entitlement to service connection for a bilateral hearing loss disability is denied. The claim of entitlement to an effective date earlier than February 13, 2015 for the grant of service connection for tinnitus is denied. REMANDED The claim of entitlement to service connection for residuals of hepatitis B, to include status post liver transplant, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran’s bilateral hearing loss disability manifested more than one year after his separation from military service, and is not otherwise related to an in-service event, injury, or disease – to include acoustic trauma. 2. The Veteran’s original claim for service connection for tinnitus was received by VA on February 13, 2015; there were no formal or informal claims prior to that date. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1117, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2018). 2. The criteria for establishing entitlement to an effective date earlier than February 13, 2015, for the grant of service connection for tinnitus have not been satisfied. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from April 1968 to May 1991, to include service in the Republic of Vietnam. These matters are before the Board of Veterans’ Appeals (Board) on appeal from June 2015 and August 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for bilateral hearing loss Service connection is warranted where the evidence of record established that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting, such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). “To establish a right to compensation for a present disability, 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)). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases 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 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2018). Presumptive service connection can be established based upon continuity of symptomatology for those chronic diseases set forth in 38 C.F.R. § 3.309(a). 38 C.F.R. §§ 3.307(a)(2)-(3), 3.309(a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January1, 1947, and a chronic disorder, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018). In order to show a chronic disease in service there is required 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 or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303 (2018). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). The Veteran claims entitlement to service connection for a bilateral hearing loss disability. For VA purposes, 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 is 40 decibels (dB) or greater. 38 C.F.R. § 3.385 (2018). Impaired hearing will also be considered to be a disability when the auditory thresholds for at least three of the aforementioned frequencies are 26 dB or greater. Id. In the alternative, impaired hearing will be considered a disability when the speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran’s June 2015 VA examination revealed a current hearing loss disability pursuant to 38 C.F.R. § 3.385. Accordingly, the first Holton element is met. With respect to the in-service element, the Veteran worked in the Air Force as a jet engine technician. See DD Form 214, dated May 1991. On his January 1991 report of medical history at retirement, the Veteran endorsed a history of hearing loss. The remarks section indicated that the Veteran had hearing loss in 1985, which was still present, but also noted that his hearing was found to be within normal range. The January 1991 audiological examination report noted the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 10 5 20 RIGHT 10 10 10 5 10 As such, the Board concedes that the Veteran was exposed to noise during service. Accordingly, the first and second Holton elements are met. Turning the third Holton element, a nexus, the first evidence of a bilateral hearing loss disability is the June 2015 VA audiological examination, which is approximately 24 years after the Veteran’s discharge from service. Accordingly, presumptive service connection is not warranted. Regarding direct service connection, the record contains a negative VA audiological opinion. The June 2015 VA audiologist opined that it was less likely as not that the Veteran’s hearing loss was due to his military service. The audiologist explained that the Veteran’s enlistment and separation physicals both revealed hearing within normal limits and that according to the American College of Occupational and Environmental Medicine, hearing loss due to noise exposure does not progress beyond that which is expected from age-related threshold shifts once the exposure to noise is terminated. She stated that, once the person is removed from the hazardous noise environment, the threat of hearing loss is removed and the person is no longer in danger of acquiring hearing loss from that noise source. The negative opinion was provided by a licensed professional, competent to assess the Veteran’s hearing and render a medical opinion. She based her opinion on an in-person assessment and the evidence of record, including medical records and the Veteran’s subjective reports of his history and his current functional deficits. She gave a thorough, well-supported rationale, based not only upon her medical expertise, but upon the most recent, generally accepted evidence from the American College of Occupational and Environmental Medicine. In the absence of a contrary medical opinion, the Board assigns great probative weight to the June 2015 VA opinion. The Board has not overlooked Veteran’s assertions that he was constantly exposed to high pitched noises during service. The Board also considered his January 1991 endorsement of ongoing hearing loss. The Veteran is competent to report his duties during service and his subjective difficulties hearing. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Nevertheless, the Veteran has not demonstrated that he has the requisite medical expertise to diagnose hearing loss or render an opinion as to the etiology of his current hearing loss disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, his assertion that he had hearing loss during service is contradicted by the objective medical evidence from his January 1991 audiometric report, which did not reveal any hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss). As such, his statements regarding the onset and etiology of his hearing loss is significantly outweighed by the January 1991 audiometric report and June 2015 VA opinion. Therefore, after considering the totality of the evidence, the Board finds the weight of the evidence, lay and medical, is against finding that the Veteran’s hearing loss disability is related to service. Accordingly, the third Holton element is not met and the claim must be denied. As the preponderance of the evidence is against, the claim, the benefit of the doubt rule is not applicable. 2. Entitlement to an effective date earlier than February 13, 2015, for tinnitus, with a disability rating of 10 percent The effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). If the claim for service connection is received within one year of a veteran’s discharge from service, the effective date of an award of service connection will be the day following discharge from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(b)(2) (2018). The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(q)(2), (r) (2018). The basic facts in this case are not in dispute. The Veteran separated from active service in May 1991. On February 13, 2015 VA received a VA Form 21-526EZ requesting service connection for tinnitus. A June 2015 rating decision granted service connection for tinnitus, with an effective date of February 13, 2015. The Veteran asserts that an earlier effective date is warranted. Specifically, in his September 2015 notice of disagreement he asserted that the effective date for his tinnitus should be May 1991, the date of his retirement from active service. He noted that he had had ringing in his ears since 1984 and was told that nothing could be done. See Notice of Disagreement, dated September 2015. After thoroughly reviewing the record, the Board finds that prior to February 13, 2015, there were no pending and unadjudicated claims for service connection for tinnitus. The Board acknowledges that the Veteran’s assertions that service connection should be retroactive to his separation from service since he has experienced tinnitus since 1984. Nevertheless, the Veteran did not file a claim for service connection for tinnitus within one year of his discharge from service or for many years thereafter. As there was no pending and unadjudicated claim for service connection for tinnitus, the earliest possible effective date for entitlement to service connection is the date of receipt of the Veteran’s original claim for service connection, which is February 13, 2015. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). Thus, the Veteran’s claim for earlier effective date for the grant of service connection for tinnitus must be denied. REASONS FOR REMAND Entitlement to service connection for residuals of hepatitis B, to include a liver transplant, is remanded. The VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board has considered the elements of McLendon in relation to the Veteran’s claim for service connection for the residuals of hepatitis B, to include status post liver transplant. The Veteran received a liver transplant in May 1996 due to cirrhosis of the liver due to Hepatitis B. See VA Treatment Records, dated May 1996. The Veteran continues to require follow-up treatment, for biopsies of the liver to determine whether Hepatitis B has infected the new liver and determining the presence or absence of signs of rejection. See VA Treatment Records, dated July 2011; Private Treatment Records, dated March 2009, February 1998. As such, the Board finds that the first McLendon element is met. While there is no specific incident contained in the Veteran’s service treatment records, the Veteran’s physician stated that the Veteran had been stationed in Southwest Asia and it was presumed that he acquired Hepatitis B during that time. See Private Treatment Records, dated March 2009. The Veteran also report that his hepatitis could be related to air gun injections he received while in the Air Force. Specifically, he reports witnessing injections with needles that were not sterilized between people. See Statement in Support of Claim, dated October 2015. In light of the Veteran’s assertions and the medical evidence of record, the Board finds that a VA opinion is required to determine whether the Veteran’s hepatitis B is related to his military service. The matter is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his hepatitis. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain any updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Forward the Veteran’s claim file to an appropriate clinician to obtain an opinion regarding his hepatitis B claim. The electronic claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. If the examiner believes that an in-person examination of the Veteran is necessary, one shall be scheduled. After reviewing the claims file and examining the Veteran, the clinician opined whether it as likely as not (a 50 percent probability or greater) that the Veteran’s hepatitis B, and the residuals thereof, arose during service or is otherwise related to service. In so opining, the clinician should address the March 10, 2009 treatment record from Rockwood Clinic indicating that it was presumed that the Veteran acquired hepatitis B during his service in Southeast Asia. The examiner should also address the Veteran’s October 2015 statement regarding his in-service vaccinations. A complete rationale should be provided for all opinions and conclusions expressed. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel