Citation Nr: 1806962 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-01 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a disability manifested by vertigo. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1966. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in March 2012 by the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, the Board remanded all three service connection claims captioned above for further development. In December 2016, per 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board requested a medical opinion from a subject matter expert employed by the Veterans Health Administration (hereinafter referred to as the VHA expert) regarding the etiology of the Veteran's hearing loss and tinnitus, as the VA medical opinions rendered per the Board's earlier remand directives were legally insufficient. In December 2017, the designated VHA expert, a VA audiologist, rendered the requested opinions, and as the opinions provide a basis for granting the related service connection claims, the Board will proceed with adjudicating these claims without first providing a copy of the medical opinions, so as to avoid any additional delay in awarding the benefits sought. FINDINGS OF FACT 1. The Veteran's current hearing loss and tinnitus are due to his in-service noise exposure. 2. The Veteran does not have a disability manifested by vertigo. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for a disability manifested by vertigo have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Veteran asserts that he developed hearing loss, tinnitus, and vertigo as a result of noise exposure resulting from a number of his in-service duties. 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.A. §§ 1110, 1131; 38 C.F.R. § 3.303. "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)). Turning first to the Veteran's claims seeking service connection for hearing loss and tinnitus, the Board notes that for the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. As reflected in several VA examination reports of record, the Veteran has current diagnoses of bilateral hearing loss, as defined for VA purposes, and tinnitus. As to the relationship between hearing loss and tinnitus, and service, the Veteran asserts that he developed these disorders as a result of in-service noise exposure. Specifically, the Veteran reports that during service, he was exposed to loud noises while performing the duties of his military occupational specialty (heating system specialist), requiring him to work in a boiler room, during which he was not provided with hearing protection and was forbidden from placing cotton in his ears to dampen the noise, as this could prevent him from hearing alarms. He further reports that he performed in an honor guard at military funerals, placing him in close proximity to rifle noise resulting from the seven rifle salute, and that his barracks were in close proximity to an Air Field, resulting in associated jet engine noise exposure. His report of his barracks' location and related jet engine noise exposure is corroborated by statements submitted by several of his fellow service members. Furthermore, the Veteran reports that his only significant noise exposure was incurred during service, as he had minimal post-service noise exposure, both occupationally and recreationally, as his recreational activities, including bow hunting, have no related loud noise exposure. The Board finds that the Veteran has competently and credibly reported his in-service and post-service noise exposure, as his reports have remained consistent over time and are supported by the record. In December 2017, after reviewing the record, including Veteran's reported noise exposure history and his service treatment records, a VHA medical expert (a VA audiologist) opined that it is at least as likely as not that the Veteran's hearing loss and tinnitus are related to service. In support of this opinion, the expert noted that the Veteran's in-service audiometric data (which previous VA examiners indicated failed to reveal evidence of in-service hearing loss) was insufficient to accurately determine the Veteran's in-service hearing acuity, as the entrance audiological data, which is comprised of whispered voice hearing test results, is an inherently unreliable method of measuring hearing acuity, and that his separation audiological test results did not include the results of puretone thresholds at 6000 Hertz, a frequency in which noise-induced hearing loss is often evident. The VHA expert then concluded that the likelihood that an untested puretone frequency would have revealed some hearing loss (or a threshold shift, if there was reliable entrance audiological data for comparison), coupled with the Veteran's reports of significant in-service, and no post-service, noise exposure, indicated that the Veteran's current hearing loss and tinnitus are related to service. As the Board finds that this medical opinion is unequivocally stated, consistent with the evidence of record, and supported by a detailed rationale, the Board finds that the opinion is probative medical evidence supporting the Veteran's hearing loss and tinnitus service connection claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). Thus, when resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's current hearing loss and tinnitus are due to his in-service noise exposure. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for these two disorders is warranted. Turning next to the Veteran's claim seeking service connection for a disability manifested by vertigo, the Board notes that one essential requirement for establishing service connection for a claimed disability is sufficient evidence of having the current disability. However, the Veteran's medical treatment of record fails to show a vertigo condition, and per a VA examination and medical opinion rendered in July 2015, per the Board's April 2015 remand directives, a VA examiner concluded that the Veteran does not have the requisite pathology to support a medical diagnosis related to his reported vertigo symptoms. In that regard, the examiner stated that while the Veteran has been prescribed medication to treat his reported symptoms of vertigo, the Veteran has not been diagnosed with, and does not have the pathology to support, diagnoses of diseases manifested by vertigo, such as benign positional vertigo or Meniere's syndrome. Moreover, while the Veteran, as a lay person with no known or reported medical expertise, is competent to report experiencing vertigo symptoms, he lacks the requisite expertise to render a medical diagnosis of a disability manifested by vertigo, as rendering such a diagnosis is beyond the purview of a lay person and requires related expertise, such as the expertise of the July 2015 VA examiner, a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). In sum, absent sufficient evidence of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the preponderance of evidence is against the Veteran's claim seeking service connection for a disability manifested by vertigo; there is no reasonable doubt to resolve on the Veteran's behalf, and service connection for a disability manifested by vertigo is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hearing loss is granted. Service connection for tinnitus is granted. Service connection for a disability manifested by vertigo is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs