Citation Nr: 1807897 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-25 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for benign paroxysmal positional vertigo (vertigo). 4. Entitlement to service connection for erectile dysfunction (ED). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran and his Spouse ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1964 to February 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, a Travel Board hearing was held before the undersigned. A transcript of the hearing is in the Veteran's record. The issues of service connection for vertigo and ED are remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action is required. FINDINGS OF FACT 1. A hearing loss disability was not manifested in service; sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and his current bilateral hearing loss is not shown to be etiologically related to his service. 2. The Veteran's tinnitus is reasonably shown to have had onset in service, and to have persisted since. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in May 2011. See 38 U.S.C. §§ 5102, 5103, 5103A ; 38 C.F.R. § 3.159. At the October 2017 Travel Board hearing, the undersigned identified the issues on appeal, explained the evidence needed to establish service connection for bilateral hearing loss and tinnitus, and identified further evidence that could help substantiate the claims. At the Veteran's request the case was held in abeyance 60 days for submission of additional evidence. No additional evidence was received. His testimony reflects that he is aware of what is needed to substantiate the claims.. The Veteran's service treatment records (STRs) and pertinent postservice treatment records are associated with the record. He was afforded an examination in connection with these claims in November 2016. He has not identified any pertinent evidence that is outstanding. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or does not show, with respect to the claim. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (i) a current disability (for which service connection is sought); (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the current claimed disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include SNHL and tinnitus as organic diseases of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a year following the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 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); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385(2017). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (i) a layperson is competent to identify the medical condition, (e.g., a broken leg, tinnitus), (ii) the layperson is reporting a contemporaneous medical diagnosis, or (iii) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 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 layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran's military occupational specialty (MOS) was heavy equipment operator. His STRs contain no mention of complaints, diagnosis or treatment pertaining to hearing loss or tinnitus. His ears were normal on service separation examination. On January 1964 service entrance examination, audiometry showed that puretone thresholds in decibels were: 500 1000 2000 3000 4000 R 0 (15) 0 (10) -10 (0) N/A 5 (10) L 0 (15) -5 (5) -10 (0) N/A 0 (5) [Numbers in parentheses represent conversions of findings reported in ASA values to the ISO values now in use.] On January 1967 service separation examination puretone thresholds were: 500 1000 2000 3000 4000 R 0 (15) 0 (10) 0 (10) NA 0 (5) L 0 (15) 0 (10) 0 (10) NA 0 (5) An October 2008 VA treatment record notes a diagnosis of gradual hearing loss. A March 2012 VA treatment record notes that the Veteran reported a longstanding history of bilateral, constant, tinnitus, noticed most in quiet environments. He denied any ear pain or drainage from the ears. He reported exposure to noise in service from 50 caliber machine guns, mortars, and heavy equipment and machinery. On November 2016 VA audiological examination, the examiner noted that on January 1967 service separation examination, audiometry showed normal hearing bilaterally. The Veteran reported that he had hearing loss and ringing in both ears. He reported that he served with the engineer corps in service and was exposed to noise from heavy equipment and mortars. He reported that his tinnitus began "a long time ago." Audiometry revealed that puretone thresholds, in decibels, were: 500 1000 2000 3000 4000 R 5 30 65 65 80 L 10 25 85 100 100 Speech audiometry revealed speech recognition ability of 32 percent in the right ear and 22 percent in the left. The diagnosis was SNHL in each ear. The examiner opined that military noise exposure was not responsible for the Veteran's hearing loss. The examiner noted that there was no significant puretone threshold shift when comparing audiometric thresholds obtained on service enlistment examination and service separation examination, and that at discharge the Veteran had normal hearing in each ear. The examiner cited to a 2006 Institute of Medicine (IOM) report indicating there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after the exposure occurs. The IOM panel had concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was "unlikely." Citing to the same rationale, the examiner opined that tinnitus was a symptom associated with the hearing loss, but military noise exposure was not responsible for the Veteran's tinnitus. On November 2016 VA ear conditions examination, the Veteran reported having tinnitus since military service. At the October 2017 Board hearing, the Veteran testified that he operated heavy equipment in service, and was exposed to noise from weapon fire and mortars. He related that he first noticed "ringing in his ears" after a mortar round landed near him. He related that after service he was a mechanic and had little exposure to noise in that occupation, and that he first sought treatment for hearing loss and tinnitus in 2008. His wife testified that she had to speak loud to him when they were first married (in approximately 1973, six years after service). The record does not include any further medical opinions regarding the etiology of the Veteran's hearing loss and tinnitus. Bilateral Hearing Loss It is not in dispute that the Veteran has a hearing loss disability (such is shown by official audiometry). His MOS in service was heavy equipment operator, and the Board finds no reason to question the credibility of his accounts that by virtue of continuous exposure to heavy equipment noise and noise from other sources in the course of his duties in service, he was subjected to some degree of noise trauma in service. Consequently, what remains necessary to substantiate his claim of service connection for bilateral hearing loss is competent evidence that the hearing loss is related to his service/noise trauma therein. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). By his own accounts and testimony the Veteran has acknowledged that he did not report, or seek treatment for, hearing loss during service or postservice prior to 2008. Consequently, service connection for a hearing loss disability on the basis that such disability became manifest in service and has persisted since or on a presumptive basis (for SNHL as a chronic disease under 38 U.S.C.A. §§ 1112, 1137) is not warranted. While he has attempted to support a continuity of symptomatology theory of entitlement (see 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013)) as SNHL is a chronic disease listed in 38 C.F.R. § 3.309(a), continuity of symptomatology is not shown by the record. The Veteran has acknowledged that he did not seek treatment for hearing loss prior to 2008, and a hearing loss disability is not documented prior to 2008. While he may be competent to report a perception of reduced hearing acuity during a lengthy, beginning in the remote past, intervening period, he is not competent to establish by his accounts of perceptions a continuity of a hearing loss disability. Under governing regulation (38 C.F.R. § 3.385) hearing loss disability must be established by specified audiometry. Consequently, service connection for the bilateral hearing loss disability based on a continuity of chronic disease symptomatology is not warranted. Service connection for a hearing loss disability may still be established by competent evidence that the hearing loss, first documented many years after service is related to service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has presented no such evidence. Whether or not a current hearing loss disability may, in the absence of evidence of onset in service or of continuity of symptomatology since, be related to remote service service/exposure to noise trauma is a medical question. The Veteran is a layperson, and his own opinion in the matter is not competent evidence; he does not cite to supporting medical opinion or treatise. The only competent (medical) evidence regarding a nexus between the Veteran's current hearing loss and his service is in the opinion of the November 2016 VA examiner who opined that the Veteran's hearing loss disability is unrelated to his service/noise trauma therein. The examiner is a medical professional competent to offer the opinion, and the opinion reflects familiarity with the Veteran's medical history, and is supported by rationale that cites to accurate factual data and medical literature, including the absence of related complaints or findings during service, and the lack of a threshold shift in service. The opinion is probative evidence in this matter, and in the absence of competent evidence to the contrary is persuasive. Therefore, the preponderance of the evidence is against this claim. Accordingly, the appeal in this matter must be denied. Tinnitus The Veteran claims that he is entitled to service connection for tinnitus because it began in service and is related to his exposure to noise therein. Based on his service records and his accounts, it may reasonably be conceded that he had some exposure to hazardous levels of noise in service. In essence, tinnitus is a disability that is diagnosed based on self-report (lay observation by the person with such disability); hence, the Veteran is competent and eminently qualified to establish by his own accounts that he has tinnitus, and that he has had it continuously since service (which is one way of substantiating a service connection claim; see 38 C.F.R. § 3.303(b)). Consequently, what is presented to the Board is the question of the Veteran's credibility (i.e., in his accounts that his tinnitus began during service, and has persisted since). The evidence against the Veteran's claim is in the report of a November 2016 VA examination, when the Veteran reported bilateral tinnitus with onset "a long time ago." The examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. The examiner noted that examinations from the Veteran's time in service indicated hearing sensitivity thresholds within normal limits, and no threshold shifts, with the Veteran denying ear problems on each occasion. The Board does not find the reasoning by the November 2016 VA examiner to be persuasive. Regarding the citations to audiological exams during his active duty service, it was only noted that the Veteran's hearing acuity was within normal limits. Hearing acuity within normal limits does not preclude the existence of tinnitus, as tinnitus may occur (and be found service-connected) even in the absence of a hearing loss disability. The Veteran is competent to report experiencing a persistent tinnitus since his service, as he reported in a March 2012 VA treatment record, on VA examination, and at the October 2017 Board hearing. It is not in dispute that the Veteran has tinnitus; the Board finds no reason to question the Veteran's reports that he ringing in his (and the reports have not been questioned by medical providers). One way of establishing a nexus between a current chronic disability and service is by showing that such disability became manifest in service, and has persisted since. The Veteran has indicated that is the situation in the instant case, and the Board finds no reason to question the credibility of his accounts. They are reasonably consistent with the circumstances of his service, and are not directly contradicted by recorded clinical data. The November 2016 VA examiner consider the Veteran's lay accounts or dispute their credibility. Accordingly, the November 2016 VA examiner's opinion lacks probative value, and cannot be found persuasive. Resolving reasonable doubt in the Veteran's favor (as required, see 38 U.S.C. § 5107; 38 C.F.R. § 3.102), the Board finds that it is shown that the Veteran's tinnitus began in service and has persisted since. The requirements for establishing service connection are met (see 38 C.F.R. § 3.303(b)); service connection for tinnitus is warranted. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. REMAND Further development is needed with respect to the claims seeking service connection for vertigo and ED. On November 2016 VA ear conditions examination, the examiner found that the Veteran's vertigo was less likely as not caused or aggravated by his tinnitus. The examiner explained that tinnitus does not cause vertigo, and that the Veteran developed tinnitus soon after discharge from service but did not develop vertigo until the mid-2000's. The examiner also noted that there may be other causes for the vertigo such as cardiac arrhythmias and second degree heart block. The focus of the opinion with respect to a secondary service connection theory of entitlement was on causation rather than aggravation. The opinion is inadequate because it did not address whether the Veteran's vertigo has been aggravated by his tinnitus (which is now service-connected). Therefore, another medical opinion is needed. On September 2008 VA diabetes examination, the examiner found that the Veteran's ED was less likely as not caused or aggravated by his diabetes mellitus. The examiner explained that at the time of his diabetes diagnosis, the Veteran already had ED (as noted in a June 1997 treatment record), when the ED was considered to be secondary to hypogonadism, and he was placed on testosterone treatment. The focus of the opinion with respect to secondary service connection was on causation rather than aggravation. The opinion is inadequate for rating purposes because it does not adequately address whether the ED was aggravated by the service-connected diabetes mellitus; therefore, development for a further medical advisory opinion is necessary. It also appears that the Veteran receives ongoing VA treatment for ED and vertigo. The most recent treatment records are from March 2017. As records of treatment since may contain pertinent information, and because VA treatment records are constructively of record, they must be sought. Accordingly, the case is REMANDED for the following : 1. The AOJ should secure for the record all outstanding (and not already in the file) records of VA evaluations and treatment the Veteran has received for vertigo and ED. 2. Thereafter, AOJ should also arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of his vertigo. The examiner must review the entire record in conjunction with the examination, and any tests or studies deemed necessary should be completed. Based on examination of the Veteran and review of his record, the examiner should provide opinions that respond to the following: a. Does the Veteran have BPPV (or another disability manifested by vertigo). Please cite to the findings that support any such diagnosis. b. Please identify the likely etiology for any disability manifested by vertigo diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that such disability is etiologically related to the Veteran's service/injuries sustained therein? c. If a disability manifested by vertigo is determined to not be related directly to the Veteran's service, please opine further whether it is at least as likely as not (a 50 percent or better probability) that such disability was caused or aggravated (the opinion must address aggravation) by his service-connected tinnitus and/or another service-connected disability (coronary artery disease). 3. The AOJ should also arrange for the Veteran's record to be forwarded to an urologist for a medical advisory opinion regarding the etiology of his ED. The entire record must be reviewed by the consulting provider. Based on a review of the record, the provider should offer an opinion that responds to the following [if the opinion sought cannot be provided without further examination of the Veteran, such should be arranged: Please identify the likely etiology for the Veteran's ED. Specifically, is it at least as likely as not (a 50% or better probability) that the ED was caused or aggravated (the opinion must address aggravation) by the Veteran's service-connected type 2 diabetes mellitus, or another service-connected disability (e.g. coronary artery disease and nephropathy). The examiner must include rationale with the opinion. 4. The AOJ should then review the record and readjudicate the remaining claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs