Citation Nr: 1806882 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-09 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lung disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Marine Corps from January 1972 to July 1972 and again from July 1972 to July 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse appeared and testified before the undersigned Veterans Law Judge at a hearing held in March 2017. A transcript of the hearing has been associated with the Veteran's claims file. The issue of entitlement to service connection for a lung disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran's bilateral hearing loss is etiologically related to service. 2. The evidence is at least in equipoise that the Veteran's bilateral tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Legal Standard Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). However, for VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. II. Analysis At the outset, the Board finds that there is no dispute that the Veteran has current disabilities of both bilateral hearing loss and tinnitus, as evidence by the April 2011 VA examination report. The audiologist who completed that evaluation provided a competent diagnosis of the Veteran's tinnitus and audiometric test results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 60 60 60 LEFT 20 20 25 45 55 Speech recognition using the Maryland CNC word list was measured to be 96 percent in the Veteran's right ear and 84 percent in his left ear. As the thresholds in both ears at least at the 3000 and 4000 frequencies exceeded 40 decibels, the Board is satisfied that the Veteran has a current bilateral hearing loss disability. The Board also finds no reason to doubt the Veteran's exposure to significant acoustic trauma in service. The Veteran has repeatedly contended that both his tinnitus and hearing loss stem from his exposure to loud noises in his military occupation and in the course of his exposure to ongoing weapons fire. A review of the Veteran's service records indicates that the Veteran served as an AmTrac Repairman and the Board finds that the preponderance of the competent evidence supports a finding that he was exposed to significant in-service acoustic trauma. Accordingly, the Board will turn to the central question of whether the Veteran's current hearing loss and tinnitus first manifested to a compensable degree within a year of service or if they are otherwise etiologically related to service. A review of the Veteran's service treatment records does not indicate that the Veteran had hearing loss for VA purposes at any point during active duty. Specifically, an audiometric evaluation from December 1971 revealed hearing threshold as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 15 25 30 LEFT 20 15 20 15 25 A subsequent exam from July 1972 included the following results, with no apparent test result in the left ear at the 3000 frequency: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 20 20 20 LEFT 20 15 10 N/A 5 In July 1974, the Veteran appears to have undergone a periodic audiological evaluation that also revealed thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 10 LEFT 10 10 5 5 5 Finally, it appears that the Veteran attended two separate audiological examinations in July 1975. At one, he was found to have hearing thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 20 20 20 LEFT 20 10 10 20 15 At his separation examination conducted that month, the Veteran underwent a reportedly normal physical evaluation of his ears and audiological test results were reported to be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 20 LEFT 15 15 15 25 25 Notably, in a report of medical history at separation, the Veteran also denied experiencing hearing loss. However, in post-service treatment records, the Veteran has consistently explained that his hearing loss and tinnitus-related symptoms began in service and have progressed ever since, including in his initial claim for service connection in August 2010 and again at the March 2017 Board hearing. As noted above, the Veteran attended a VA-provided audiological evaluation in April 2011 to gain further clarity about his condition. The audiologist who evaluated the Veteran ultimately stated that it was less likely than not that the Veteran's right-ear hearing loss was caused by or a result of military noise exposure. In support of this opinion, the examiner explained that there was no significant threshold shifts in the right ear when comparing the enlistment examinations and the 1975 separation examination and that therefore the current hearing loss in this ear was more likely a post-service occurrence. Importantly, this audiologist did not address the likelihood that the Veteran's in-service acoustic trauma could have caused delayed-onset hearing loss in the Veteran's right ear. With respect to the Veteran's left-ear hearing loss and his tinnitus, the April 2011 audiologist stated that she was not able to provide an opinion regarding whether these disabilities arose in or were caused by the Veteran's active duty service. She explained that audiometric findings in the Veteran's left ear were variable, with 1973 test results showing better thresholds than 1971 but, when comparing the 1973 test results to the Veteran's separation examination, there were threshold shifts at the 4000 frequency (of note, it appears that this examiner is referencing a July 1972 reenlistment examination and references to 1973 appear to be a typographical error). However, due to the discrepancies in the frequencies tested between the tests, she determined that she could not determine without speculation whether the Veteran's hearing loss began as a result of military noise exposure. She also indicted that tinnitus due to noise exposure is typically accompanied by high frequency hearing loss and, as she could not determine without speculation whether hearing loss was due to service, she was also unable to provide an opinion regarding whether tinnitus was due to the Veteran's service. Fortunately, the record also contains an additional opinion with respect to the etiology of the Veteran's hearing loss and tinnitus. In May 2014, the Veteran attended a private audiological evaluation, at which time the Veteran again reported that his tinnitus and hearing loss had begun during service and had worsened over time. Speech discrimination scores using the Maryland CNC Word list were 88 percent in both ears and audiometric test results from that evaluation were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 50 50 LEFT 30 25 65 80 70 The examiner noted that impulse noise with peak levels exceeding approximately 140 decibels may be hazardous even for a single exposure and that noise levels associated with hearing loss were also likely to be associated with hearing loss. Finally, this examiner indicated that, based on the type, duration, and intensity of the Veteran's exposure incidents in addition to his reports of tinnitus prior to discharge and relating hearing loss, it was more likely than not that the Veteran's hearing loss and tinnitus were a result of in-service acoustic exposure. The Board finds that both the private examiner from May 2014 and the VA audiologist who evaluated the Veteran in April 2011 are medical professionals who have the training to provide a competent opinion regarding the etiology of the Veteran's hearing loss and tinnitus. Although the record does not indicate that the Veteran has the knowledge, experience, or training to provide a competent opinion regarding the medically complex question regarding the etiology of his hearing loss and tinnitus disabilities, he is competent to report the onset and course of his personally observable symptoms relating to these conditions. As the competent and credible medical opinions directly oppose each other, and taking into consideration the Veteran's competent testimony regarding the onset of his symptoms, the Board ultimately finds that the evidence is at least in equipoise regarding whether the Veteran's current bilateral hearing loss and tinnitus are due to his in-service acoustic trauma. Therefore, resolving all reasonable doubt in his favor, the Board finds that his claim for service connection for these disabilities should be granted. ORDER Service connection for bilateral hearing loss is granted. Service connection for bilateral tinnitus is granted. REMAND Although the Board sincerely regrets the additional delay, the Veteran's claim for service connection for a lung disability must be remanded at this time to engage in additional evidentiary development. As part of its duties to assist a claimant, VA may be required to provide a claimant with a medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). However, once VA undertakes the effort to afford a claimant with an examination, VA must ensure that this examination is adequate. Id. A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be fully informed. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). If an examination report is inadequate or fails to contain sufficient detail, the Board is required to return the report. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). The Board also notes that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). If a medical opinion does not clearly address the relevant facts and medical science, the Board "is left to rely on its own lay opinion, which it is forbidden from doing." Stefl, 21 Vet. App. at 124 (Citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)). Here, the Veteran was afforded a VA medical examination to determine the nature and etiology of his lung disability in January 2012. Unfortunately, the Board finds that this examination report does not clearly address the relevant objective medical facts and examination reports in the Veteran's claim file and it must be returned so that the Veteran may attend a clarifying medical examination. In short, the Veteran has a complicated pulmonary history which includes a five month hospitalization while in service for pneumonia. His history also includes extensive tobacco use. There appear to be some inconsistencies in the January 2012 VA examination report. The examiner described the results of a pulmonary function test conducted in July 2011 and provided a brief summary of the results of a March 2006 CT scan of the Veteran's thorax. Regrettably, the summary of the Veteran's 2006 CT scan appears to be incomplete. The January 2012 VA examiner did indicate that this diagnostic scan found evidence of emphysematous changes in both upper lobes. However, the actual CT scan report appearing in the Veteran's claims file found numerous additional abnormalities, including references to bronchiectatic dilation and interstitial thickening of both lobes and lobe spaces indicating either acute or chronic bronchitis. This scan also reportedly found areas of ground glass density within both lung bases, which the interpreting physician indicated might represent "accessory fissures with slight inflammatory thickening or represent areas of partial atelectasis/scarring from previous inflammation." Paraseptal interstitial thickening was also noted, indicating "mild lung fibrosis." Finally, this CT scan report also stated that the Veteran had a linear band of patchy reticulonodular interstitial density within the right middle lobe that "may represent an area of chronic inflammation or atypical mycobacterial pneumonia (MAI infection)." The numerous references in this report that the CT scan abnormalities represent chronic changes to the Veteran's lungs, including possible scarring, appear to match the Veteran's contentions that he experiences chronic or permanent residuals from his in-service hospitalization. The Board, however, is precluded from exercising independent medical judgment. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relating to the Veteran's lung disability and associate them with the Veteran's claims file. 2. Thereafter, schedule the Veteran for a medical examination with an appropriate medical professional to determine the nature and etiology of any current lung disability. All tests and studies deemed necessary should be completed. The entire claims file should be made available to the examiner, who should note in the examination report review of the same. The examiner is asked to provide an opinion and complete rationale for the following items: a) Please identify all lung-related diagnoses the Veteran has had since he filed his claim for service connection in August 2010. In providing this list of diagnoses, please specifically comment on the abnormalities noted in the March 2006 CT scan, including reports of bronchiectatic dilation, interstitial thickening, ground glass densities, lung fibrosis, and chronic inflammation or atypical mycobacterial pneumonia. Do these represent findings that are related to the Veteran's in-service treatment for pneumonia? b) For each diagnosis identified in the Veteran's lungs that has been present at any point since August 2010, please provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the condition arose in or is otherwise etiologically related to the Veteran's active-duty service, to include as a result of exposure to asbestos or due to the Veteran's documented multi-month hospitalization in service for pneumonia. 3. After ensuring compliance with items one and two, conduct any other development deemed appropriate or raised by the record. 4. Finally, readjudicate the Veteran's claim for service connection for a lung disability. If the claim is not granted, provide the Veteran and his representative a supplemental statement of the case and allow them an appropriate amount of time to respond before returning the claim to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs