Citation Nr: 1807649 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-23 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Brian G. Quinn, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran had active service from July 1967 to July 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) "Tiger Team" at the Regional Office (RO) in Cleveland, Ohio. Jurisdiction resides with the RO in St. Louis, Missouri. A brief procedural history is warranted. Following the January 2010 rating decision, the Veteran initiated a timely appeal in January 2011, and in August 2012, the RO in St. Louis, Missouri issued a statement of the case (SOC). Also in August 2012, the Veteran, through his then-representative, filed new evidence in support of his claims and noted that he wished to reopen the claims. The Veteran's August 2012 evidence appears to have crossed in the mail with the SOC while the SOC was en route. In another August 2012 letter dated more than two weeks after the issuance of the August 2012 SOC, the Veteran's representative submitted a statement regarding the Veteran's hearing preferences with respect to the appeal, thereby indicating the Veteran's continued desire to appeal the January 2010 rating decision. Given that there was no doubt that the Veteran wished to continue the appeal, the Board accepts the letter in lieu of a Substantive Appeal Form 9. The Board acknowledges that the AOJ treated the August 2012 evidence as a new claim for service connection and denied the claims in a June 2013 rating decision. The Board also acknowledges that the Veteran perfected the appeal of the June 2013 rating decision. However, as the Veteran's original appeal was still open, the January 2010 rating decision was not final and the Board need not reach a determination regarding whether new and material evidence was received to reopen the claims. This appeal was previously remanded by the Board in August 2015 to afford the Veteran a videoconference hearing. Such hearing was provided in October 2016 before the undersigned Veterans Law Judge. A transcript of the proceeding is included in the file. Following the hearing, the Board held the record open for 90 days so that the Veteran could submit additional evidence in support of the claim. The Veteran submitted additional evidence without a waiver of review by the Agency of Original Jurisdiction (AOJ) but he is not prejudiced by consideration of the same as the Board is herein granting the claims. With respect to the claim for service connection for headaches, the Board has added this issue to the title page above because the August 2012 SOC also addressed service connection for headaches and the Veteran's August 2012 statement in lieu of a Substantive Appeal did not indicate that it was only intended to address the hearing loss and tinnitus claims. Further, during the Board hearing, the Veteran's attorney noted that the issue of entitlement to service connection for headaches was still on appeal and that the AOJ had not readjudicated the issue following the August 2012 SOC. The Veteran's attorney indicated that the AOJ should have addressed the Veteran's headache claim in connection with the claims regarding ischemic heart disease and/or adrenal tumor. The issues of entitlement to service connection for ischemic heart disease and an adrenal tumor were raised by the record during the hearing before the Board, as well as in the October 2008 claim, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over October 2008 claim, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). With regard to the issues of ischemic heart disease and an adrenal tumor, the Veteran is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran's favor, his bilateral hearing loss is etiologically related to noise exposure during military service. 2. Resolving all doubt in the Veteran's favor, tinnitus had its onset during his service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1031, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss and tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159; see also Godfrey v. Derwinski, 2 Vet. App. 352 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is 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 at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). a. Hearing Loss In this case, the Veteran claims service connection for bilateral hearing loss that he believes is related to noise exposure in service and hearing difficulty that has been ongoing since service. As an initial matter, there is no dispute that the Veteran was exposed to significant noise in service, including combat noise in Vietnam as well as noise from saws and other power tools while performing his military occupational specialty. See Hearing Transcript and July 2012 letter from Dr. C.E. Additionally, there is no dispute that the Veteran has bilateral hearing loss as defined by VA. In this regard, private audiograms as well as VA examination reports dated in November 2009, January 2010, and June 2014, indicate that the Veteran's puretone thresholds meet the requirements for a current hearing loss disability under 38 C.F.R. § 3.385. Thus, the remaining question is whether the Veteran's current hearing loss disability is related to the noise exposure in service. The Board finds that the evidence is at least in equipoise and resolves doubt in the Veteran's favor. Weighing against the claim are all of the VA opinions (dated in November 2009, January 2010, May 2013, and June 2014) that it was less likely than not that the Veteran's hearing loss had its onset in service. As rationale, all of VA examiners based the negative opinions in large part on the 2005 study that concluded there was no scientific basis for delayed or late onset noise-induced hearing loss if there was no hearing loss at the time of the noise exposure. The examiners also based the determination on the separation audiogram which showed puretone levels within normal limits, the Veteran's lack of hearing complaints when he filed claims for service connection for other issues immediately following service, and the premise that the Veteran was exposed to significant noise exposure while working for a construction company post-service. The evidence in favor of the claim includes: a medical opinion from a private audiologist relating the Veteran's hearing difficulties to noise exposure in service; a letter from a private otolaryngologist who opined that the Veteran's in-service noise exposure was significantly worse than any post-service noise exposure; the Veteran's statements that his post-service job with the construction company was actually an office job; and, the Veteran's wife's January 2017 observation that the Veteran appeared to have hearing loss when she met him less than one year after service separation and that she observed him having difficulty hearing since that time. Regarding the private clinician letters, in July 2012, Dr. C.E., audiologist, offered a positive nexus opinion relating the Veteran's current hearing loss to in-service noise exposure. Dr. C.E. explained that her conclusions were based upon review of the Veteran's service treatment records, medical literature, and interview with the Veteran, to include consideration of noise exposure in-service and post-service. Dr. C.E. acknowledged that the Veteran's separation audiogram indicated that hearing acuity was within normal limits, but explained that such result was not fatal to the claim because according to histopathology literature, outer hair cell damage in the cochlea occurs prior to an individual ever showing a threshold shift on an audiogram. Additionally, in a January 2017 letter, Dr. J.P., otolaryngologist, confirmed that the Veteran was exposed to significantly more noise during service than he was post-service. Dr. J.P. explained that the Veteran was exposed to levels of noise far greater than those experienced by normal people, during service. Dr. J.P. noted that during basic training, the Veteran was exposed to explosive noises without adequate hearing protection and during service in Vietnam, he was exposed to explosive noises from snipers, enemy combatants and booby traps. Dr. J.P. noted that the Veteran's noise level exposure post-service was nowhere near the noise level to which he was exposed in service. Dr. J.P. also noted that, in reaching these conclusions, he reviewed the Veteran's service treatment records, private treatment records, VA claims file, and personally examined the Veteran. Dr. J.P. did not specifically offer an opinion with respect to whether the Veteran's hearing loss is at least as likely as not related to service; however, Dr. J.P. linked the Veteran's tinnitus to service. Regarding the Veteran's post-service noise exposure, he has consistently explained that although he worked for a construction company, he was not actually doing the construction, that his job was primarily in an office, and that he wore hearing protection on occasion when he was exposed to civilian construction noise. See e.g., Hearing Transcript, January 2011 notice of disagreement, and July 2012 letter from Dr. C.E. Taking together the private medical opinions and the lay evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current hearing loss is related to service. The Board notes that the VA examiners' opinions turn largely on the fact that the Veteran's separation examination revealed hearing acuity within normal limits. They explained that the finding is significant given the 2005 medical study that concluded there was no scientific basis for delayed or late onset noise-induced hearing loss if there was no hearing loss at the time of the noise exposure. The VA opinions did not take into consideration the possibility that the Veteran experienced difficulty hearing within one year of service separation even though his audiogram on service separation was within normal limits. Similarly, the VA opinions did not consider the Veteran's wife statement regarding her observations of the Veteran having difficulty hearing within one year of service separation and worsening every year since service. Likewise, the examiners did not address Dr. C.E.'s opinion that the cochlea may be damaged before being noted on audiogram. Moreover, the examiners did not address the Veteran's assertion the separation audiogram lacks reliability as to the Veteran's hearing acuity at the time of separation because the examination took place months prior to the Veteran's actual service separation and the Veteran continued to be exposed to noise in service after the examination. The Board acknowledges the VA examiners' concern regarding the Veteran's lack of complaints regarding his hearing when he filed claims for service connection for other issues immediately following service. However, the Board finds credible the Veteran's competent sworn testimony explaining that he did not notice that he was losing his hearing at that time. Moreover, the Board finds competent and credible the Veteran's wife's observation that the Veteran appeared to have difficulty hearing when she met him, which was less than one year after the Veteran's service separation, and that she has observed such difficulty hearing worsening each year since that time. See January 2017 letter from the Veteran's wife. As the VA examiners' opinions do not include consideration of the competent and credible lay evidence regarding continuity of hearing difficulty symptoms since the noise exposure in service, and appear to have based their opinions in part on a misunderstanding regarding the nature of the Veteran's post-service noise exposure, and rely on a potentially unreliable service audiogram, the Board affords the VA opinions only a limited probative value. Additionally, the Board places a high probative value on the July 2012 private audiological opinion as well as the medical and lay statements which, when taken together, support the assertion that the present hearing loss is related to the noise exposure in service. Moreover, there is no indication that the Veteran experienced significant, intervening noise exposure since service. In this regard, the Board finds credible the Veteran's statements that his work was primarily in an office setting even though he worked for a construction company and that he wore hearing protection on occasions when his job required him to visit work sites. Consequently, the Board resolves all doubt in favor of the Veteran and finds that the evidence is at least in equipoise that his bilateral hearing loss is related to noise exposure in service. Accordingly, service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. b. Tinnitus With respect to the Veteran's claim for tinnitus, he contends that his tinnitus is also related to the noise exposure in service. As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus. In this regard, the Veteran reports experiencing ringing in the ears. See e.g., Hearing Transcript. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is subjective, its existence is generally determined by whether or not the Veteran claims to experience it. Thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). As the Veteran has offered competent and credible descriptions of tinnitus, the Board finds that he has a current diagnosis of such disorder. As discussed above, the Board finds that the Veteran has competently and credibly reported that he was exposed to significant noise while serving in Vietnam. Consequently, the remaining inquiry is whether the Veteran's current tinnitus is related to such in-service noise exposure. The evidence of record is sufficient to find that the Veteran's tinnitus is directly related to service. In this regard, the Board reiterates that service connection may be granted based on continuity of symptomatology of a chronic disease under 38 C.F.R. § 3.309(a), despite the absence of a medical nexus opinion linking the present disability to the in-service noise exposure. In this regard, tinnitus is recognized as a chronic disease under 38 C.F.R. § 3.309(a). Although it is not specifically listed, it is included as an "organic disease of the nervous system." See Fountain v. McDonald, 27 Vet.App. 258 (2015). Thus, service connection may be granted on the basis of continuity of symptomatology even if there is no medical evidence of a nexus between the in-service noise exposure and the Veteran's current tinnitus. In this case, the Board acknowledges that tinnitus was not explicitly diagnosed during service or within the applicable presumptive period. See 38 C.F.R. § 3.307(a)(3). Nevertheless, the record contains credible evidence of continuity of tinnitus symptomatology beginning during service and continuing since discharge. The Board acknowledges that the Veteran filed claims for service connection shortly after service separation and did not complain of hearing loss or tinnitus at that time. However, the Board finds credible the Veteran's explanation that he remembered noticing ringing in his ears during service in Vietnam, as well as his statements that he originally attributed his ringing in the ears to congestion from smoking. See Hearing Transcript. The Board has no reason to doubt the veracity of the Veteran's statements regarding the onset of his tinnitus and the continuity of symptomatology since service. Further, the Board finds the January 2017 private opinion from Dr. J.P. to have a high probative value. Dr. J.P. reviewed the Veteran's service treatment records, post-service medical records, and personally examined the Veteran. Dr. J.P. noted that the Veteran has current diagnoses of hearing loss and tinnitus and that the noise level to which the Veteran was exposed to during his post-service career was not anywhere near what the Veteran was exposed to in service. Based upon consideration of the facts of the Veteran's case, Dr. J.P. determined that it is as likely as not that the Veteran's tinnitus began during service and was caused or aggravated by service. It light of the foregoing, the Board resolves all doubt in favor of the Veteran and finds that tinnitus had its onset during his service. Consequently, service connection for such disorder is warranted. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMAND With respect to the claim for service connection for a headache disorder, additional evidence has been added to the record since the issuance of the August 2012 statement of the case. Thus, the AOJ should readjudicate the issue prior to any further action by the Board. Additionally, as noted in the Introduction above, the Veteran's attorney has indicated that a headache disorder and/or headache symptomatology may be associated with the claimed adrenal gland tumor and ischemic heart disease, issues for which service connection is claimed but has not yet been addressed by VA. As such, the issues are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). As such, the Board will defer action on the appeal for service connection of headaches until the AOJ adjudicates the claims for service connection for an adrenal gland tumor and ischemic heart disease. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the referred issues of entitlement to service connection for an adrenal gland tumor and ischemic heart disease. 2. After completing the above, readjudicate the claim for service connection for headaches. If the claim remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs