Citation Nr: 18157452 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-01 524 DATE: December 12, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for ischemic heart disease (IHD) is remanded. FINDINGS OF FACT 1. The Veteran’s hearing loss was not incurred during service, is not attributable to service, and did not manifest within one year of discharge from service. 2. The Veteran’s tinnitus was not incurred during service, is not attributable to service, and did not manifest within one year of discharge from service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria to establish service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to January 1972. He served in the Republic of Vietnam from January 1971 to January 1972 and earned a Combat Infantryman Badge. See DD Form 214. The Veteran appeals a February 2014 rating decision by the Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for bilateral hearing loss, tinnitus, IHD, and back condition. The Board notes that in July 2017, the AOJ denied increased ratings for PTSD, bilateral upper and lower extremity peripheral neuropathy, and entitlement to a total disability rating based on individual unemployability (TDIU). After the Veteran submitted a timely notice of disagreement (NOD), the AOJ issued a letter acknowledging receipt and has undertaken further development of the issues. Therefore, no action is warranted by the Board under Manlincon v. West, 12 Vet. App. 238, 240-41 (1991). Service Connection The Veteran contends that his bilateral hearing loss and tinnitus are attributable to loud noise exposure in service. See January 2014 VA examination report. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Hearing loss and tinnitus have been interpreted as such diseases. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In the case of any veteran who engaged in combat with the enemy in active service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b). 1. Hearing Loss The Veteran has bilateral hearing loss for VA purposes. See January 2014 VA examination report. Further, the Veteran earned a Combat Infantryman Badge for his service in Vietnam. Thus, the Board finds that the Veteran engaged in combat with the enemy in Vietnam. 38 U.S.C. § 1154(b). In lay statements of record, the Veteran describes the loud noises he was exposed to during combat in Vietnam, to include gunfire and mortar rounds without the use of hearing protection. See January 2014 VA examination report. Based on these assertions, he is presumed to have been exposed to acoustic trauma during service in Vietnam. See 38 U.S.C. § 1154(b). As a predicate matter, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s hearing loss manifested itself to a degree of 10 percent or more within a year of his discharge from service in 1972. A whisper test showed normal hearing upon separation. See January 1972 separation examination. Nevertheless, even accounting for the questionable weight of a whisper test, a VA clinician still concluded the Veteran’s hearing loss did not manifest to a degree of 10 percent or more within a year of service because the Veteran was inconsistent as to when his symptoms began and Veteran did not complain of hearing loss when he filed an unrelated service connection claim within a month of separation. See January 2014 VA examination report. Here, the Veteran did not complain of hearing loss during service. Notably, the Veteran has provided at least two different answers as to when his bilateral hearing loss began. First, he said it began “seven to eight years” before January 2014. See January 2014 VA examination report. Then, five months later, he claims it began “immediately after service.” See May 2014 NOD. He also has attributed his bilateral hearing loss to “his age.” See August 2012 VA treatment record. Further, as discussed in Dalton v. Nicholson, 38 U.S.C. § 1154(b) reduces the evidentiary burden for combat Veterans with respect to evidence of in-service incurrence of an injury, but is not equivalent to a statutory presumption that the claimed disorder is service connected. 21 Vet. App. 23, 37 (2007). Hence, the Board finds that the Veteran is not entitled to service connection for bilateral hearing loss based on the chronic disease presumption. Ultimately, the crux of this case centers on whether the Veteran’s current bilateral hearing loss is attributable to loud noise exposure in service. A January 2014 VA clinician opined that the Veteran’s hearing loss is less likely than not related to in-service loud noise exposure. The clinician specifically acknowledged the Veteran’s exposure to loud noise. However, after a thorough review of the medical evidence, the clinician noted that the Veteran reported his hearing loss began seven to eight years before the examination, which is 34 to 35 years post-military discharge. Based on this evidence, along with a 2006 Institution of Medicine study indicating delayed-onset hearing loss due to noise exposure is unlikely, the Veteran’s hearing loss is deemed less likely as not caused by or a result of military service. Id. Then, the VA clinician found civilian occupational and recreational noise exposure as the likely etiology of the Veteran’s bilateral hearing loss. Specifically, the Veteran reported a history of civilian occupational noise exposure when he worked as a police officer for eight years where he was exposed to loud noise in the form of “sirens without hearing protection and to weaponry on the pistol range with the use of hearing protection.” See January 2014 VA examination report. He also worked as an armed security guard for 20 years where he was exposed to noise in the form of weaponry during annual qualifications with the use of hearing protection. Then, the Veteran reported a history of civilian recreational noise exposure in the form of “weaponry while hunting prior to military service without the use of hearing protection.” Id. The Veteran believes that his exposures to loud noise in the military resulted in his hearing loss. Id. He also believes his hearing loss is due to old age. See August 2012 VA treatment record. The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran’s hearing loss is causally related to service cannot be determined by mere observation alone. The Board finds that determining the etiology of the Veteran’s hearing loss is not within the realm of knowledge of a non-expert, and concludes that his nexus opinion in this regard is not competent evidence and therefore not probative of whether his hearing loss is attributable to loud noise exposure in service. Further, to the extent the Veteran claims that he has had continuous hearing loss symptoms since service, he is competent to do so. However, his statements regarding the onset of hearing loss are not credible due to inconsistency with other evidence of record. In a January 2014 VA examination, the Veteran reported that his hearing loss symptoms began seven to eight years prior, approximately 34 to 35 years after service which is evidence that tends to weigh against the claim. Moreover, the Board notes that the Veteran had the opportunity to file a claim for hearing loss given the fact that he filed a claim for another condition immediately after service; however, he did not do so, and has not offered a reason why. Therefore, the Board finds that the Veteran’s statements as to the onset and continuity of hearing loss symptoms are not credible. Accordingly, the Board affords more probative weight to the opinion of the January 2014 VA clinician. The opinion was drafted by a health care professional, based on a review of the evidence in the claims file, to include service treatment records and the Veteran’s historical accounts, and supported by adequate rationale. Therefore, the Board must deny the Veteran’s claim of entitlement to service connection for bilateral hearing loss because the preponderance of the evidence weighs against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Tinnitus The Veteran has tinnitus and was exposed to loud noise in-service. See January 2014 VA examination report. As a predicate matter, the Board finds that the preponderance of evidence is against a finding that the Veteran’s tinnitus manifested itself to a degree of 10 percent or more within a year of his discharge from service in 1972. Here, the Veteran did not complain of tinnitus. Notably, the Veteran has provided at least three different answers as to when his tinnitus began. First, at an audiology appointment in August 2012, the Veteran’s main complaint was “constant, bilateral tinnitus with onset 7-8 months ago.” See August 2012 VA treatment record. Upon VA examination, the Veteran stated it began “in the mid-1980s.” See January 2014 VA examination report. Then, five months later, he claims it began “immediately after service.” See May 2014 NOD. Further, as discussed in Dalton v. Nicholson, 38 U.S.C. § 1154(b) reduces the evidentiary burden for combat Veterans with respect to evidence of in-service incurrence of an injury, but is not equivalent to a statutory presumption that the claimed disorder is service connected. 21 Vet. App. 23, 37 (2007). Hence, the Board finds that the Veteran is not entitled to service connection for tinnitus based on the chronic disease presumption. Ultimately, the crux of this case centers on whether the Veteran’s current tinnitus is attributable to loud noise exposure in service. A January 2014 VA clinician opined that the Veteran’s tinnitus is less likely than not related to in-service loud noise exposure. The clinician specifically acknowledged the Veteran’s exposure to loud noise. However, after a thorough review of the medical evidence, the clinician noted that the Veteran reported his tinnitus began in 2012, which is 40 years post-military discharge. To the extent the Veteran claims that he has had continuous tinnitus symptoms since service, he is competent to do so. However, his statements regarding the onset of tinnitus are not credible due to inconsistency with other evidence of record. On three occasions, the Veteran has cited three different onset dates for his bilateral tinnitus. Specifically, he has stated it began immediately after service, in the mid-1980s, which is over 10 years after service, and around 2012, or 40 years after service. Moreover, the Board notes that the Veteran had the opportunity to file a claim for tinnitus given the fact that he filed a claim for another condition immediately after service; however, he did not do so, and has not offered a reason why. Therefore, the Board finds that the Veteran’s statements as to the onset and continuity of tinnitus symptoms are not credible. Accordingly, the Board affords more probative weight to the opinion of the January 2014 VA clinician. The opinion was drafted by a health care professional, based on a review of the evidence in the claims file, to include service treatment records and the Veteran’s historical accounts, and supported by adequate rationale. Therefore, the Board must deny the Veteran’s claim of entitlement to service connection for bilateral tinnitus because the preponderance of the evidence weighs against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Low Back The evidentiary record as it pertains to the Veteran’s low back service connection claim is incomplete. Specifically, the Veteran indicated in his May 2014 NOD that he was hospitalized during service because he fell out of a jeep in Vietnam. A remand is required to allow VA to request these potentially relevant records. Further, the Veteran was afforded a VA examination in January 2014 to assess the etiology of his low back disability. However, the Board finds that the clinician’s opinion is inadequate for adjudication purposes. As stated above, the Veteran indicated he fell out of a jeep in Vietnam, and the service treatment records document a low back complaint in October 1970. See October 1970 service treatment record. Nevertheless, the January 2014 VA clinician opined that the Veteran’s low back disability was less likely than not related to his time on active duty. The clinician stated “STR contain no other evidence [other than October 1970 low back complaint] or mention of low back condition, symptoms, duty limitations, x-ray or treatment. Although [s]eparation medical reports Jan 1972 contain no member history form, the examiner’s history and exam report are both silent regarding any back condition or history.” See January 2014 VA examination report. However, this contradicts the evidence of record, as the Veteran described falling off a jeep in Vietnam and earned a Combat Infantryman Badge. The Board finds falling off a jeep in Vietnam as consistent with the circumstances, conditions, or hardships of such service, thus, lay evidence alone may be sufficient to show the in-service injury occurred. As such, the clinician improperly discounted the Veteran’s lay testimony and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Thus, an opinion is required on remand to address the Veteran’s complaint of lower back pain in service, to include falling off a jeep, as well as his continuing symptoms since. 2. IHD The evidentiary record is unclear as to whether the Veteran has IHD. A June 2001 chest radiograph showed a normal sized heart. In contrast, a spine x-ray showed “arteriosclerosis.” See June 2001 VA treatment record. It is not clear, however, whether this is arteriosclerotic cardiovascular disease (a type of IHD) or a peripheral manifestation of arteriosclerosis which Note 2 of 38 C.F.R. § 3.309(e) states is not IHD. Consistent with VA’s duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, has a low evidentiary threshold. See 20 Vet. App. at 83. Whether the Veteran has IHD is a critical fact in this case, as he served in the Republic of Vietnam and IHD is a presumptive condition. Further, it is unclear whether the Veteran has any other cardiovascular condition subject to direct service connection. Therefore, the low evidentiary standard is met, and a VA examination is necessary to determine if the Veteran has IHD or if any heart condition is attributable to his time on active duty. The matters are REMANDED for the following action: 1. Obtain records of any inpatient treatment at Phuc Vinn Hospital in 1971 as discussed in the Veteran’s May 2014 NOD. Document all requests for information as well as all responses in the claims file. 2. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his lower back and cardiovascular symptoms that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 3. Schedule the Veteran for an examination to determine the nature and etiology of his cardiovascular symptoms. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the clinician should identify all cardiovascular disabilities present. For each identified disability, the clinician is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran has ischemic heart disease? B. Is it at least as likely as not that the Veteran’s cardiovascular symptoms were incurred in, or are otherwise related, to his time on active service, to include herbicide agent exposure? The clinician is to discuss the Veteran’s documented arteriosclerosis impression in a June 2001 treatment record. In rendering these opinions, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s low back disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the clinician, the VA clinician should identify all lower back disabilities present. Then, the VA clinician is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s lower back disability was incurred in, or is otherwise related, to his time on active service, to include falling off a jeep in-service coupled with documented low back pain? In rendering this opinion, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. Further, the clinician is to discuss the Veteran’s fall from a jeep in March or April 1971 in Vietnam. This includes a discussion of lay evidence attesting to continuity of the Veteran’s symptoms since separation. The clinician is also to discuss this fall coupled with the Veteran’s reported low back pain in October 1970. For the purposes of this opinion, the clinician is to assume the Veteran credible as to the facts surrounding his fall from a jeep in Vietnam, documented low back pain in service, and continuity of his symptoms. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (CONTINUED ON THE NEXT PAGE) 5. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel