Citation Nr: 18150932 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-01 136 DATE: November 16, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for a stomach disability is denied. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s current bilateral hearing loss disability is related to in-service acoustic trauma. 2. The evidence of record clearly and unmistakably reflects that the Veteran’s stomach disability, which existed prior to his period of active duty service, neither increased in severity during his active military service, nor was aggravated beyond its natural progression by his active military service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85 (2017). 2. The criteria for service-connected aggravation of a pre-existing stomach disability have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1131, 1153, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active military service with the United States Army from July 1970 to March 1972. During this time, he was awarded the National Defense Service Medal. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This case was previously before the Board in August 2015, at which time the issues of entitlement to service connection for a bilateral hearing loss disability, a bilateral tinnitus disability, and a stomach disability were remanded for additional development. A subsequent rating decision issued by the RO granted the Veteran service connection for bilateral tinnitus, and assigned a 10 percent evaluation effective August 16, 2013, the date of receipt of the Veteran’s service connection claim. See November 2015 Rating Decision. The establishment of service connection for bilateral tinnitus represents a full grant of the benefit sought on appeal; therefore, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires competent evidence showing: (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 “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. See 38 C.F.R. § 3.304 (b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the preexisting disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that “even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness”). Additionally, a pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Where the pre-service disability underwent an increase in severity during service, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). VA may find a lack of aggravation under 38 U.S.C. § 1111 if clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 (West 2014) and 38 C.F.R. § 3.306 (2014)); but see Horn, 25 Vet. App. at 238 (emphasizing that “neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111”). If this burden is met, then the veteran is not entitled to service connection benefits. Wagner, 370 F.3d at 1096. There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board will assess the competence and credibility of lay statements as well. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See, e.g., Struck v. Brown, 9 Vet. App. 145, 152 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). 1. Entitlement to service connection for bilateral hearing loss disability The Board emphasizes that the Veteran has been previously granted service connection for tinnitus. See November 2015 Rating Decision. The Veteran maintains that he has a current bilateral hearing loss disability that arose at the same time, in the same way, and from the same underlying injury as service-connected tinnitus. He specifically asserts he developed a hearing pathology manifested by symptoms including decreased hearing and tinnitus as a result of repeated in-service exposure to canon fire without the benefit of hearing protection as part of his military occupation of driving a tank equipped with a firing canon. See April 2015 Hearing Transcript. In this case, the Veteran has been diagnosed with bilateral sensorineural hearing loss. See June 2015 Ear Specialists of Omaha Audiological Evaluation. Additionally, the audiogram performed in conjunction with this evaluation confirms that the Veteran has a current bilateral hearing loss disability for VA purposes, as the Veteran had bilateral puretone threshold levels of 40 decibels or greater at the frequencies of 2000, 3000, and 4000 Hertz, as well as 74 percent speech recognition in his right ear, and no speech recognition in his left ear using the Maryland CNC test. Id; see also 38 C.F.R. § 3.385 (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.); Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As noted, the Veteran has indicated in statements and testimony adduced throughout the pendency of the claim that he sustained repeated exposure to traumatic noise as a result of repeated in-service exposure to canon fire without the benefit of hearing protection while driving a tank during his military service. See April 2015 Board Hearing Transcript. In this regard, he is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). Although the Veteran’s separation examination is silent for complaints and/or diagnoses of bilateral hearing loss, the Veteran has asserted throughout the pendency of the claim that he first experienced a hearing pathology, including decreased hearing, immediately following his active military service, and that his auditory symptoms have progressively worsened since that time. See Hensley, 5 Vet. App. at 159-160 (holding that, when audiometric test results do not meet the regularity requirements for establishing a “disability” at the time of the Veteran’s separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service). In this regard, the Veteran is competent to report observing a decline in his hearing acuity since his active service, as hearing loss is certainly a condition with “unique and readily identifiable features” that is “capable of lay observation.” See Jandreau, 492 F. 3d at 1376-77; see also Barr, 21 Vet. App. at 309. Accordingly, the Board finds the Veteran’s statements concerning the in-service onset of his auditory symptomatology to be credible. See Caluza v. Brown, 7 Vet. App. at 711, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Regarding the third element of secondary service connection, medical nexus, the record contains conflicting medical opinions regarding the link between the Veteran’s current bilateral hearing loss disability and his in-service noise exposure. A VA examiner previously opined in August 2014 that the Veteran’s bilateral sensorineural hearing loss was not as least as likely as not related to or aggravated by his active service. See October 2015 VA Hearing Loss and Tinnitus Compensation and Pension Examination Report. In arriving at this conclusion, the examiner cited the to the fact that the Veteran’s separation audiogram reflected normal hearing with no significant shift in hearing between the audiograms for either ear from the Veteran’s enlistment audiogram. Id. However, the Veteran supplied a contrasting private medical opinion linking his current bilateral hearing loss to his in-service noise exposure. See June 2015 Ear Specialists of Omaha Audiological Evaluation. The Veteran’s private audiologist cited to the Veteran’s exposure to “persistent tank noise” during his active service and opined that it “was more likely than not” that the Veteran’s “noise induced hearing loss” was related to his active service. Id. Certain elements of the multiple positive and negative medical opinions in this case are probative. Both sets of evidence have respective strengths and weaknesses. In such situations, the benefit of the doubt is resolved in the Veteran’s favor. In determining whether compensation is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, given the evidence of a current hearing loss disability and in-service noise exposure, and resolving the benefit of the doubt in the Veteran’s favor with respect to the medical evidence of a nexus between the Veteran’s currently diagnosed hearing loss and his active service, the Board finds that his hearing loss is at least as likely as not related to his in-service noise exposure. 38 C.F.R. §§ 3.303(a); Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67. Therefore, the Board finds that service connection for the Veteran’s hearing loss is warranted. 2. Entitlement to service connection for a stomach disability The Veteran also asserts that he is entitled to service connection for his pre-existing stomach disability on the basis of aggravation of this disability during service. Specifically, he asserted that military food he consumed during his active service resulted in a significant worsening of the manifestations of his stomach condition in the form of gastroesophageal reflux disease (GERD) and stomach ulcers, and which has continued since his separation. Here, the evidence establishes the Veteran’s stomach disability pre-existed the Veteran’s period of active military service. Specifically, on his August 1969 entrance examination, the Veteran checked that he previously had stomach issues, and the examiner noted “no ulcer history.” See August 1969 Report of Medical Examination. The Veteran also indicated after a year on active service that he had stomach disorders for two years. See August 1970 Madigan General Hospital Chronological Record of Medical Care. Additionally, at his April 2015 Board hearing, the Veteran asserted that he had stomach problems prior to his entry into active service. See April 2015 Board Hearing Transcript (reflecting that the Veteran indicated he had a stomach condition prior to entering service, that at the time he felt it was a “sensitive stomach” and reiterating that he notified his examiner at the time of his induction examination that he previously had stomach problems). The Veteran also underwent a November 2015 VA Stomach examination where the examiner opined after interviewing the Veteran and reviewing his service treatment records as well as his private and VA medical center (VAMC) records that the Veteran’s stomach condition clearly and unmistakably preexisted his active service. See November 2015 Stomach and Duodenal Conditions Disability Benefits Questionnaire. Accordingly, the Veteran is not presumed to be in sound condition. See, e.g., 38 U.S.C. § 1111; Harris v. West, 203 F. 3d. 1347, 1350 (Fed. Cir. 2000) (a veteran’s own lay statements that his current disorder or disease preexisted his active service may be sufficient to rebut the presumption of soundness, even in the absence of verifying clinical evidence or recorded history); Doran v. Brown, 6 Vet. App. 283, 286 (1994) (in which the Court of Appeals for Veterans’ Claims noted that “as a matter of law... the presumption of soundness [could be]... rebutted by clear and unmistakable evidence consisting of [the] appellant’s own admissions... of a preservice [disability].”). Thus, the relevant inquiry is whether his condition was aggravated beyond the natural progression of the disability during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted with symptoms, has worsened. See Davis v. Principi, 276 F.3d. 1341, 1346-46 (Fed. Cir. 2002); Maxson v. West, 12 Vet. App. 453, 458 (1999). While the Veteran received treatment for stomach pain during service, the evidence of record does not reflect an increase in severity of the Veteran’s pre-existing stomach condition during his period of active service. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). As noted above, the Veteran self-reported that he had stomach problems on entry into active service. The physician that examined the Veteran at service entry noted that the Veteran did not have an ulcer history. During service, the Veteran sought medical treatment for stomach pain in September 1969. The remainder of his service treatment records are silent for any complaint, treatment, or diagnosis of any subsequent stomach problems. Further at the time of his February 1972 service separation examination, no additional manifestations of his stomach condition were noted. Accordingly, the Board concludes that the Veteran’s stomach condition did not undergo an increase in severity during his active service. A review of the evidence of record reflects that an increase in manifestations of the Veteran’s stomach symptoms were first recorded in October 1984, after he had separated from active service. See, e.g., March 1973 VA Upper GI Radiographic Report (noting that the Veteran had irritability and deformity of the duodenal bulb with an ulcer crater demonstrated in the central posterior aspect of the bulb, and diagnosing him with epigastric pain and a healed duodenal ulcer with evidence of scarring); October 1984 Alegent Health Treatment Note (reporting that the Veteran had recurrent bouts of vomiting, suspecting an esophageal ulcer, and prescribing Tagamet); June 1995 Alegent Health Treatment Note (diagnosing the Veteran with chronic acid peptic disease and prescribing Zantac); July 1995 Alegent Health Treatment Note (reflecting that the Veteran felt “dramatically better” with Zantac and dietary restrictions and diagnosing him with a healing peptic ulcer); March 2009 Alegent Health Treatment Note (indicating that the Veteran has GERD controlled by medication); September 2011 Alegent Health Treatment Note (diagnosing the Veteran has having GERD controlled by Zantac); April 2015 Board Hearing Transcript (recording that the Veteran reported he was not actively being treated by a physician for his stomach condition but that he was still “taking the antacids that were prescribed all through these years.”). Because the relevant medical evidence of record does not establish an increase in severity of symptoms of the Veteran’s pre-existing stomach disability during active service, nor does it reflect that an increase to a compensable degree within a year of the Veteran’s discharge from active service, the presumption of aggravation is not conceded. See 38 C.F.R. § 3.306 (b); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran’s health and medical treatment during and after military service, as evidence of whether a preexisting condition was aggravated by military service). Further, with respect to nexus, the probative medical evidence of record does not establish that the Veteran’s stomach condition was aggravated by his active service. 38 C.F.R. § 3.303(a), (d); Holton, 557 F.3d at 1366. In November 2015, the Veteran underwent a VA stomach examination. See November 2015 Stomach and Duodenal Conditions DBQ. The VA examiner opined that the Veteran had “a longstanding stomach condition,” which had clearly and unmistakably existed prior to his active service, that was not aggravated beyond its natural progression by the Veteran’s active service. Id. In arriving at this conclusion, the VA examiner cited to: the Veteran’s comments regarding the existence of his stomach condition prior to active service; the isolated nature of complaints regarding manifestations of his stomach condition in the Veteran’s STRs; and the characterization of peptic/duodenal ulcer disease as a natural progression of the Veteran’s stomach condition, because the Veteran’s “baseline would still have been peptic ulcer/duodenal ulcer disease, regardless of serving in the military, as his history of this disease progress was likely to continue over time, as this occurs in the general population.” Id. Concerning lay evidence of a nexus between the Veteran’s aggravation of his stomach condition and his military service, while lay persons are not unconditionally incompetent to speak about medical diagnosis or etiology issues, see Davidson, 581 F.3d at 1316, the Board again must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. Woehlaert, 21 Vet. App. at 462. The Veteran has asserted that his stomach condition was aggravated by the food he ate during his active duty service, and his wife asserted that his stomach symptoms began manifesting approximately one month after the Veteran separated from active service. See April 2015 Board Hearing Transcript. While lay persons are competent to report symptoms that are observable, of which they have personal knowledge, and may provide opinions on some medical issues, 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 470; Kahana, 24 Vet. App. at 435, the particular issue of whether the Veteran’s pre-existing stomach condition was aggravated beyond its natural progression by his active service falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d at 1377 n.4. Further, while the Veteran and his wife are competent to report that he suffered physical symptoms associated with his stomach condition, the Board assigns more probative value to the medical evidence of record with respect to nexus. Buchanan, 451 F.3d at 1336. Specifically, the Board finds the opinion of the VA examiner in November 2015 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran’s pre-existing stomach condition was not aggravated beyond its natural progression by his active service. The findings of the VA examiner were based on a thorough review of the evidence, and cited to the medical evidence. The opinion contains an internal logic consistent with the known facts, as well as with other evidence of record. The Board finds this opinion to be highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In light of the lack of evidence showing an increase in severity of the Veteran’s pre-existing stomach condition during service, and the November 2015 VA examiner’s findings, the Board concludes that service connection for a pre-existing stomach condition, based upon aggravation in service, is not warranted. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel