Citation Nr: 1808691 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-07 073A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a mid-back disability. 4. Entitlement to service connection for a mid-back disability. 5. Entitlement to clothing allowance benefits for the year 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jasmin C. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1976 to June 1980. The Veteran also had service in the Army National Guard with various periods of active duty for training (ACDUTRA). The service connection claims for bilateral hearing loss and tinnitus come before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of whether new and material evidence has been received to reopen the claim for a mid-back disability comes from a September 2008 rating decision. The clothing allowance claim comes from an August 2013 decision of the North Texas Health Care System. These matters were previously remanded to allow for a Board hearing and for further development by the RO. In October 2017, the Veteran testified at a video conference hearing before the undersigned. A transcript of this hearing has been associated with the record. The issue of entitlement to service connection for a mid-back 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. A bilateral hearing loss disability was not shown within one year after discharge from service, and the competent and probative evidence does not establish that the Veteran's current bilateral hearing loss disability was incurred in or otherwise related to his period of service. 2. The probative evidence of record is at least in relative equipoise that the Veteran's currently diagnosed bilateral tinnitus originated in service or is otherwise attributable to his active duty service. 3. A March 2007 rating decision denied service connection for a mid-back disability. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 4. The evidence received subsequent to the March 2007 final denial of the claim for service connection for a mid-back disability is new, and is also material because it raises a reasonable possibility of substantiating the claim. 5. The Veteran does not does not use a prosthetic or orthopedic appliance for any service-connected conditions. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. As new and material evidence has been received, the criteria to reopen the claim for service connection for mid-back disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for a clothing allowance have not been met. 38 C.F.R. § 3.810 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service. 38 U.S.C. § 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). II. Bilateral Hearing Loss The Veteran asserts that his bilateral hearing loss resulted from two separate assaults that occurred on active duty, which caused perforations to his eardrums. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disabilities, such as hearing loss, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is considered to be a chronic disability for VA purposes. For 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; when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley at 155, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303 (d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303 (d). The Board also notes that the absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When the Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley, 5 Vet. App. at 159-160. Turning to the evidence of record, service treatment records indicate that in November 1977, the Veteran presented with left ear pain after being struck in the ear. It was noted that the left tympanic membrane was perforated and the right tympanic membrane was intact. In July 1978, the Veteran reported a whistling noise in his right ear and the assessment was perforation of the right tympanic membrane. Upon separation, an April 1980 report of medical examination noted that the Veteran's ear drums were normal, with no perforations. In a June 1980 report of medical history for entrance into the National Guard, the Veteran denied ear trouble and hearing loss. On examination, the Veteran's ears and drums were noted as normal, with no perforation of the eardrums. The Board notes the first documentation of medical evidence indicating hearing loss was in January 2008, when the Veteran received a VA examination. The examiner diagnosed the Veteran with bilateral high-frequency sensorineural hearing loss, with speech discrimination of 100 percent in both ears; and puretone decibel loss of 10, 20, 25, 40, and 45 in the right ear and 10, 20, 20, 30, and 40 in the left ear, at the 500, 1000, 2000, 3000, and 4000 Hz frequencies. In a September 2013 VA examination, the examiner diagnosed the Veteran with bilateral high-frequency sensorineural hearing loss, with speech discrimination of 100 percent in both ears; and puretone decibel loss of 10, 20, 35, 40, and 55 in the right ear and 10, 20, 25, 40, and 50 in the left ear, at the 500, 1000, 2000, 3000, and 4000 Hz frequencies. As such, bilateral hearing loss is established per VA regulations. See 38 C.F.R. § 3.385. The September 2013 VA examiner determined that the Veteran's hearing loss was less likely than not (less than 50 percent probability) caused by or a result of an event in military service. The VA examiner rationalized that an examination in 1976 and an audiogram in 1980 each demonstrated bilateral hearing within normal limits. In forming her opinion, the examiner reviewed the Veteran's claim file and considered the Veteran's lay statements that he was exposed to artillery and small arms noise in service without hearing protection. Based on the foregoing, the Board finds that the most probative evidence of record establishes that the Veteran's bilateral hearing loss is less likely than not related to his period of active service. Regarding the Veteran's assertions that his hearing loss was caused by his head trauma sustained on active duty, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran asserts that his hearing loss is not due to noise exposure, but to his in-service head trauma. However, the Veteran's accounts of in-service hearing loss are simply not corroborated by the medical evidence of record. The first report of hearing loss occurred in 2007 in a lay statement, approximately 30 years after separation. The Board considers the medical evidence demonstrating eardrum perforations noted in-service. However, the Veteran exhibited normal hearing for VA purposes when examined at separation and for entry into the National Guard. As such, the most probative evidence of record does not establish that the Veteran's currently diagnosed bilateral hearing loss is related to his period of active duty. Instead, the most probative medical evidence of record has demonstrated that the disorder was diagnosed more than three decades following separation, and as such hearing loss is not directly or presumptively related to the Veteran's period of active service. As the weight of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Tinnitus The Veteran contends that his bilateral tinnitus resulted from being assaulted while on active duty, as set forth above. The Board finds that service connection for tinnitus is warranted. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A January 2008 VA examination confirmed a diagnosis of constant tinnitus. The Veteran reported that the high-pitched ringing began in 1977 and that he sustained perforated tympanic membranes in both ears following head injuries on active duty. In a February 2008 addendum opinion, the examiner noted that the Veteran's service treatment records were negative for complaints of tinnitus. The examiner opined that it was less likely than not that bilateral tinnitus might be related to any head trauma incurred while on active duty, and instead that the Veteran's current tinnitus was likely related to bilateral high frequency sensorineural hearing loss incurred subsequent to separation. The Veteran received a VA examination in September 2013 and the examiner opined that the Veteran's tinnitus was less likely than not caused by military noise exposure because threshold shifts were not found in service. The Board finds the Veteran's lay testimony to be of particular importance for this claim, as the determination of whether or not service connection is warranted for tinnitus turns almost entirely on his lay testimony. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. Here, the Veteran has consistently reported that he experienced symptoms of tinnitus since his in-service head trauma. Further, as mentioned above, the Veteran's service treatment records demonstrate the Veteran reported whistling noises in service following treatment for perforated ear drums after being hit in the head. The Board notes that the February 2008 addendum opinion states that there was no indication of tinnitus in the service treatment records, but the opinion does not appear to consider the Veteran's report of whistling in the right ear in July 1978. While the January 2008 and February 2008 VA examiners provided negative nexus opinions regarding whether the Veteran's tinnitus was related to his active duty service, the Board finds that, given the Veteran's lay statements and the evidence of record in support of the Veteran's claims, the evidence is at least in relative equipoise on this matter. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. IV. Mid-Back Disability The Board finds that the low threshold for reopening the claim for service connection has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is material, and the Veteran's claim for service connection for a mid-back disability is reopened. V. Clothing Allowance The Veteran seeks a clothing allowance for calendar year 2013 for his use of a four-wheeled walker. Specifically, the Veteran contends that VA prescribed a walker for his back and knee conditions. Under 38 U.S.C. § 1162, VA will pay a clothing allowance to each veteran who because of a service-connected disability, wears or uses a prosthetic or orthopedic appliance which the Secretary determines tends to wear out or tear the clothing of the veteran. A veteran who has a service-connected disability is entitled to an annual clothing allowance if (1) the disability is the loss or loss of use of a hand or foot and an examination or hospital report discloses that the Veteran wears or uses certain prosthetic or orthopedic appliances which tend to wear or tear clothing because of such disability; or (2) the Under Secretary for Health or such designee certifies that the veteran, because of a service-connected disability or disabilities, wears or uses a qualifying prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) which tends to wear or tear clothing. 38 C.F.R. § 3.810(a)(1). In this case, the Veteran's service-connected disabilities include major depressive disorder, bilateral pes planus, right testicle atrophy, and tinnitus (as a result of the above decision). VA medical records indicate that during a March 2011 kinesiotherapy consultation, the Veteran was prescribed a Rollater Walker with a seat. The Veteran reported complaints of fatigue and inability to walk long distances and the clinician issued a diagnosis of obesity. The Board notes that the Veteran was not prescribed the Rollater Walker for any of his service-connected conditions, but instead for obesity, for which the Veteran is not service-connected. In the absence of evidence to show that the Veteran uses a prosthetic or orthopedic appliance for a service-connected disability, the Board finds that the Veteran is not entitled to a clothing allowance for the calendar year 2013. See 38 C.F.R. § 3.810. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. New and material evidence having been received, the claim of entitlement to service connection for a mid-back disability is reopened. To that extent only, the appeal is granted. Entitlement to clothing allowance benefits for the year 2013 is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed with respect to the remaining claim on appeal and that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he sustained a mid-back injury during active duty and aggravated this injury during his period of ACDUTRA. At a video hearing in August 2017, the Veteran testified before the undersigned that he received private treatment from a chiropractor in early 1983 for his mid-back condition. He further stated that he was treated at other hospitals for subsequent back injuries and an automobile accident. As such, a remand is necessary to obtain all outstanding private treatment records relative to the Veteran's mid-back disability. Accordingly, the case is REMANDED for the following action: 1. Associate with the record all updated VA treatment records. 2. Contact the Veteran to ask if there are any private records pertaining to his mid-back disability or other records relevant to the claim, including private chiropractic records from Dr. Blumenthal and Southwest Medical (Parkland). After obtaining any necessary releases, request any records identified by the Veteran. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. If any identified records are not obtained, document the unavailability of the records in the claims file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for review. 3. Thereafter, readjudicate the issue on appeal. If the benefits sought remain denied, provide the Veteran with a supplemental statement of the case, and afford him a reasonable opportunity to respond before the file is returned to the Board for further 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). ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs