Citation Nr: 1807830 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-09 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for a neck disorder. 4. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1964 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal of November 2011 and June 2013 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. The issues of entitlement to service connection for a neck disorder and a lumbar spine disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Bilateral hearing loss disability is attributable to service. 2. Tinnitus is attributable to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred during service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). 2. Tinnitus was incurred during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this decision, the Board is granting the claims being decided herein. Further discussion of the VCAA is therefore unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Nonetheless, the Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, 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), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an initial matter, the Board finds that the Veteran in this case engaged in combat with the enemy. The Veteran served in Vietnam and engaged in military operations against hostile forces, for which he was awarded the Combat Infantryman Badge. A finding that a Veteran engaged in combat with the enemy under 38 U.S.C.A. § 1154(b) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Based on the above, the Board finds that the Veteran engaged in combat with the enemy and the combat provisions of 38 U.S.C.A. § 1154 are applicable in this case. Likewise, the Board concedes that he had in-service noise exposure. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The Board also notes that the Veteran's DD Form 214 reflects that the Veteran's military occupational specialty was vehicle wheel mechanic and that the Veteran received a parachute badge. Bilateral Hearing Loss Disability The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. 38 C.F.R. § 3.385. Regarding bilateral hearing loss disability, the Board finds that the evidence of record demonstrates that service connection is warranted. The results of his April 2013 VA audiological examination confirms that he has sufficient hearing loss in both of his ears to meet the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered an actual "disability." Furthermore, the Veteran has credibly stated that he experienced decreased hearing since the time of his in-service noise exposure, and that he did not have any significant post-service occupational or recreational noise exposure. The Board acknowledges that the April 2013 VA examiner found that the Veteran's bilateral hearing loss disability was less likely than not caused by exposure to hazardous noise during service. However, the Board points out that the April 2013 VA opinion relies on the premise that sensorineural hearing loss occurs immediately following the hazardous noise exposure. The Veteran's competent and credible statements thus support a nexus between his current hearing loss disability and his in-service noise exposure. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits). The evidence weighing against the claim is the April 2013 VA opinion. As to this negative nexus opinion, Board finds that it is inadequate and lacking in probative value, as the April 2013 VA examiner relied on the lack of a significant threshold shift from entrance to separation in finding that the Veteran's bilateral hearing loss is not related to service. This VA examiner disregarded the Veteran's lay statements of continuity and lack of noise exposure since service. In opining that the Veteran's bilateral hearing loss was not due to his military noise exposure, the examiner did not provide a rationale other than a lack of a significant threshold change during service age, despite confirmed in-service hazardous noise exposure; audiological testing confirmed that the Veteran has current hearing loss disability. Moreover, as previously discussed, the Veteran credibly reported a history of decreased hearing in the years since service. The April 2013 VA examiner's nexus opinion failed to address the Veteran's credible lay statements attesting the onset of decreased hearing during service or the significance of his documented history of noise exposure in service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). In this regard, the Board points out that the April 2013 VA examiner did not explain how the Veteran's exposure to hazardous noise exposure in service could not have caused his sensorineural hearing loss; instead, the VA examiner found that, because the Veteran's thresholds were within normal limits during service and at separation, his current bilateral sensorineural hearing loss disability could not be related to service. The Veteran's credible history of decreased hearing since service is consistent with hearing loss disability. The Board reiterates that the absence of evidence of hearing loss at separation is not determinative as to whether his hearing loss disability is related to his military service and does not preclude service connection in this case. Sensorineural hearing loss is associated with noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability); 38 C.F.R. § 3.303(d) (service connection warranted in some circumstances where disease is first diagnosed after service). Hence, on this record, the evidence is found to be at least evenly balanced in showing that the Veteran's bilateral hearing loss disability is at least as likely as not had clinical onset following his exposure to harmful noise levels in connection with his service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Tinnitus The Board also finds that service connection is warranted for tinnitus. The Board again finds that the VA examiners' opinions to be inadequate. The Board points out that the absence of evidence of tinnitus at separation or for many years after is not determinative as to whether tinnitus is related to military service and does not preclude service connection of tinnitus in this case. See Hensley, supra. See also 38 C.F.R. § 3.303(d) (service connection warranted in some circumstances where disease is first diagnosed after service). Moreover, the April 2013 VA examiner's finding that the Veteran's tinnitus is not related to service because the Veteran could not remember a specific event associated with tinnitus, or the exact onset, lacks probative value, as the opinion does not specifically address the Veteran's specific assertions and the absence of any other causes of his tinnitus. Instead, the Board points out that the April 2013 VA examiner acknowledged that the Veteran's tinnitus is a symptom associated with bilateral hearing loss disability. To the extent that the April 2013 VA examiner relied on the delayed onset of the Veteran's tinnitus as the sole explanation for the tinnitus not being etiologically related to the Veteran's in-service noise exposure, the opinion lacks probative value. The opinion disregards the Veteran's competent and credible lay statements attesting that the onset of tinnitus is related to noise exposure during service, as well as a medical history devoid of other risk factors for tinnitus. In this regard, the VA examiner's finding that the Veteran's tinnitus is unrelated to noise exposure in service is inconsistent with the evidence of record. In short, other than the noise exposure in service, which caused his currently service-connected bilateral hearing loss disability, there is no other plausible cause for the Veteran's tinnitus. The Veteran's competent and credible statements thus provide a nexus linking his current tinnitus and to his in-service noise exposure; harmful noise exposure is consistent with the conditions of his service. See Buchanan, supra. Hence, on this record, the evidence is found to be at least evenly balanced in showing that the Veteran's tinnitus at least as likely as not had clinical onset following his exposure to harmful noise levels in connection with his service. In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus is granted. REMAND The Veteran asserts that he has a neck disorder and a lumbar spine disorder related to his service. In particular, the Veteran asserts that his current neck disorder and lumbar spine disorder are related to an October 1967 motor vehicle accident; the Board observes that the Veteran is currently service-connected for residuals of injuries related to the in-service motor vehicle accident. The record reflects that the Veteran has been diagnosed with degenerative changes of the cervical spine with spur formation and degenerative changes of the lumbar spine with disk and facet disease and central canal and foraminal stenosis. As such, the Board finds that the Veteran should be afforded a VA examination regarding the claims for service connection of a neck disorder and a lumbar spine disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Any available VA treatment should be associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to obtain and associate with the record copies of the Veteran's VA treatment records, if any, associated with the claims on appeal for the rating period on appeal. 2. The Veteran should be afforded a VA cervical and thoracolumbar spine VA examination to determine the nature and etiology of any neck disorder and/or lumbar spine disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should identify any current neck disorder and/or lumbar spine disorder and provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that any identified neurological disorder is related to any event, illness, or injury during service, including the Veteran's October 1967 motor vehicle accident. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 3. After completing all indicated development, the RO should readjudicate the claims for service connection for a neck disorder and/or lumbar spine disorder in light of all the evidence of record. If any of the benefits sought remain denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs