Citation Nr: 18126350 Decision Date: 08/15/18 Archive Date: 08/14/18 DOCKET NO. 14-03 928 DATE: August 15, 2018 ORDER 1. Entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus is denied. 3. Entitlement to service connection for cirrhosis, to include as secondary to a service-connected disability, is granted. REMANDED 4. Entitlement to service connection for a variously diagnosed psychiatric disability, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. A right or left hearing loss disability was not manifested in service; sensorineural hearing loss (SNHL) was not manifested to a compensable degree within one year following the Veteran’s discharge from active duty; continuity of hearing postservice is not shown; and the Veteran’s hearing loss disability is not otherwise shown to be etiologically related to his service, including as due to exposure to noise therein. 2. The Veteran’s tinnitus was not manifested in service or to a compensable degree within a year following his discharge from active duty; continuity of tinnitus since service is not shown; and his tinnitus is not otherwise shown to be etiologically related to his service, to include as due to exposure to noise therein. 3. Competent medical evidence establishes that the Veteran’s service-connected hepatitis C was an etiological factor for his development of cirrhosis of the liver. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. Service connection for tinnitus is not warranted. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. Secondary service connection for cirrhosis of the liver is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1971 to May 1974, and had additional service in the Reserves. These matters are before the Board on appeal from a September 2013 rating decision. In June 2015, the Board remanded the matters for additional development. [The Board’s remand also addressed a claim of service connection for hepatitis C. An April 2018 rating decision granted the Veteran service connection for hepatitis C, resolving that matter.] Service Connection 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. § 1110; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Service connection for bilateral hearing loss is denied. 2. Service connection for tinnitus is denied. The Veteran contends that his bilateral hearing loss and tinnitus resulted from his exposure to noise trauma in service. He alleges that during his active duty service he was exposed to noise trauma by virtue of working in an administration building that was near a flight line and also from exposure to jet engine noise. He alleges that tear gas canisters exploded in his face while he was serving in both the Air Force and the Army Reserves. His DD 214 reflects that his MOS was administrative specialist. The Veteran states that he sustained acoustic trauma from an exploding tear gas canister while he was in the Army Reserves stationed at Fort Leonard Wood, between May 1974 and May 1975. His claims file contains a September 2015 response to a PIES records request that was negative for records from possible locations from 1974 or 1975. In a May 2017 letter, the AOJ determined that the service personnel records requested to verify periods of active duty for training or inactive duty for training during the period of May 1974 to May 1975 could not be located and are unavailable. The Veteran’s STRs are silent for complaints, findings, treatment, or diagnosis of hearing loss or tinnitus. On April 1971 service enlistment examination audiometry, all puretone thresholds in the pertinent frequencies were in the normal range (between 10 and 15 decibels). On April 1974 service separation examination audiometry, all puretone thresholds in the pertinent frequencies were in the normal range (between 0 and 10 decibels); on contemporaneous report of medical history, the Veteran denied any history of hearing loss. On August 1974 VA examination hearing loss was not noted. On September 2012 treatment, the Veteran reported concerns of difficulties hearing for years and ringing in his right ear, noting that he felt like it was always humming. The assessment based on audiological testing was basically flat moderately severe to severe hearing loss throughout tested frequencies in both ears. On his December 2012 claim for service connection, the Veteran indicated that his bilateral hearing loss began in 1992. On May 2013 VA audiological evaluation, the Veteran reported that in service he qualified with the 50 caliber, 45, 208 grenade launcher, and M16 rifle, and hearing protection was provided. His MOS was administrative specialist; he reported he was exposed to flight line jet engine noise, generators, lawn mowers, and weed eater, all without hearing protection. Regarding non-military noise exposure, he reported he worked as a maintenance mechanic for the past 50 years, working with gas, electric and propane motors (while wearing hearing protection). He also related that he wore hearing protection most of the time while working with household power equipment. He related that his recurrent tinnitus started many years ago as an intermittent sound, but changed to a constant tinnitus in both ears in the previous year or two; he could not say when it started other than “many years ago”. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 50 40 45 LEFT 30 45 50 55 45 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left. The diagnosis was bilateral sensorineural hearing loss. The examiner opined that the Veteran’s hearing loss is not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The examiner cited the audiometry on the Veteran’s enlistment and separation exams, noted that there was no significant shift in puretone thresholds from enlistment to separation bilaterally, and opined that the Veteran’s bilateral hearing loss was unrelated to his service. The examiner opined that the Veteran’s tinnitus was less likely than not (less than 50% probability) caused by or a result of military noise exposure, and that his MOS as an administrative specialist is shown to have a low probability of exposure to hazardous noise. The examiner opined that the Veteran’s constant tinnitus is more than likely due to his recreational and occupational exposure to noise as a maintenance mechanic for the previous 50 years and natural aging. On September 2013 VA psychiatric examination, the Veteran reported that he was hit in the face with a tear gas canister in the service in approximately 1974 or 1975 at Fort Benjamin Harrison; he reported that he passed out and was hospitalized for this incident. On December 2013 VA audiology follow-up, the audiologist opined that the configuration of the Veteran’s hearing loss, a fairly flat mild/moderate sensorineural hearing loss, is most consistent with a familial and/or genetic hearing loss; the assessment was presbycusis and sensorineural hearing loss likely secondary to a familial hearing loss. At the September 2014 Board hearing, the Veteran testified that he worked in the administrative building right next to the flight line, and his major duties included taking people to air shows; he also ran the housing project on the base which was right next to the airfield as well. He testified that he was exposed to the jet engines and generators without hearing aids. He testified that he took on extra jobs like running cable on the flight line. He testified that he served in the Army Reserves, 970th 2nd combat engineers. He testified that while he was serving in the Reserves and stationed at Fort Leonard Wood, within one year following service [between May 1974 and May 1975], a tear gas canister blew up in his face, and he sustained noise trauma. He testified that his noise exposure after service included maintenance construction doing carpentry, metal bending, sawing, and plumbing, with hearing protection. He testified that he has had tinnitus since he left service due to his exposure to repetitive noise. He testified that he first sought treatment for his hearing in approximately 1997. On December 2016 VA examination, the Veteran reported that his hearing loss began when he was in service, stating that he worked on the flight line and in museums for airplanes which used live planes. He reported exposure to noise in the Army Reserve, including from grenades, M60s and M50s. He reported he shot guns for recreation (with hearing protection) and denied other recreational noise exposure. He reported he worked in the civil service as a maintenance foreman until he retired in 1996, following which he worked as a bus driver; hearing protection was not mentioned for these positions. He denied a family history of hearing loss. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 55 60 55 65 LEFT 20 45 55 55 60 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 94 percent in the left. The examiner opined that there was not a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hertz for either ear. The examiner opined that the Veteran’s bilateral hearing loss is not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The examiner explained that the Veteran’s position as an administrative specialist in the Air Force from 1971 to 1974 is a position known to have a low probability of exposure to hazardous military noise. The examiner noted the Veteran’s reports of serving in the U.S. Army Reserve from 1975 to 1979, with assignments to a pest control unit and as a maintenance mechanic with the water and refuse department. The examiner opined that the Veteran’s hearing was well within normal limits for all frequencies tested at entrance to and separation from the Air Force, and no significant permanent threshold shifts occurred during service. The examiner cited the National Institute for Occupational Safety and Health’s recommendations regarding what constitutes a significant threshold shift. The examiner noted that the Veteran reported acoustic trauma during active duty training from an exploding gas cylinder as the cause of his tinnitus but not as the cause of his hearing loss; however, no records were located to support this claim. The examiner noted that a previous VA examination report is silent regarding hearing loss, as are the Veteran’s STRs and postservice medical records and opined that, therefore, the record does not show acoustic trauma due to exposure to noise in service. The examiner observed that audiometry during active duty actually shows a downward trend in auditory thresholds, and not an upward trend, and that postservice audiometry establishes a current hearing loss by VA standards, first documented in 2012 (38 years after separation from active duty service). The examiner noted that the record is silent for the mention of tinnitus or hearing loss until 2012. The examiner opined that, although the Veteran reports acoustic trauma in service, there is no proof of such trauma as the Veteran’s hearing remained within normal limits from entrance to separation, with no significant permanent threshold shift during that time, and that a significant shift could not have occurred as all puretone thresholds on separation were within 0 to 10 decibels. The examiner opined that, therefore, it is less than likely that any the Veteran’s current hearing loss currently is due to exposure to noise in the military. The examiner noted environmental factors, certain medications (such as furosemide, prescribed to the Veteran in 2014), genetics, and exposure to loud noise over an extended period (such as being a maintenance mechanic for over 50 years post military) as risk factors for development of hearing loss, and also noted that age is a major risk factor for hearing loss (and that age-related hearing loss (presbycusis) is thought to have both genetic and environmental influences). Citing to a 2005 Institute of Medicine report, the examiner indicated that there is little evidence to support the suggestion of delayed onset hearing loss. The examiner identified the likely etiology for the Veteran’s tinnitus, indicating that it at least as likely as not (50% probability or greater) is a symptom associated with his hearing loss (as tinnitus is known to be a symptom associated with hearing loss). The examiner opined that the tinnitus is less likely than not (less than 50% probability) caused by or a result of military noise exposure. Postservice treatment records do not include any further opinions regarding the etiology of the Veteran’s hearing loss or tinnitus. Certain chronic diseases, to include SNHL and tinnitus (as an organic disease of the nervous system), may service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for organic disease of nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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. Hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection for such disability to be granted. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for hearing loss must show, as is required in any claim of service connection, that a current hearing loss disability is the result of an injury or disease in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. It is not in dispute that the Veteran now has a bilateral hearing loss disability, and also has tinnitus. Hearing loss disability (as defined in 3.385) was found on VA examination, and the diagnosis of tinnitus is established essentially by self-reports by the person experiencing it. It may also reasonably be conceded (based on his reports that his duty station in service was near a flight line) that he was exposed to some level of noise in service. What remains necessary to substantiate the claims is evidence that the current hearing loss and tinnitus are etiologically related to his service/and acknowledged exposure to noise therein. A hearing loss disability and tinnitus was not manifested in service, and SNHL and tinnitus are not shown to have been manifested to a compensable degree within a year following the Veteran’s discharge from service. Accordingly, service connection for his current hearing loss and tinnitus on the basis that they became manifest in service, and persisted, or on a chronic disease presumptive basis (under 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309), is not warranted. As SNHL and tinnitus are chronic diseases listed 38 C.F.R. § 3.309(a) (as organic diseases of the nervous system), the Board has considered whether service connection may be granted based on continuity of symptomatology (under 38 C.F.R. § 3.303(b)). However, continuity of symptomatology of either disease is not shown. Neither was noted in service, to include on April 1974 service, or on service separation examination (when audiometry was normal), or on VA examination during the following year, or for many years thereafter. Notably, under 38 C.F.R. § 4.85, hearing loss disability must be established by audiometry specified in governing regulation. To the extent that the Veteran may be seeking to establish continuity of tinnitus since service by current accounts of such, his accounts regarding when tinnitus was first noted have been inconsistent. There is no documentation of tinnitus in service or for nearly 40 years thereafter. He initially indicated it had been present for years (and did not report onset in service); then in May 2013 he reported it began many years ago, first on an intermittent basis, then becoming constant; and finally he testified before the Board that it has been present since service. The accounts are tailored to the compensation-seeking process, and the most recent reports of onset in, and continuity from, service are self-serving; and lack credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Therefore, service connection for the bilateral SNHL or tinnitus based on continuity of symptomatology is not warranted. The preponderance of the evidence is also against a finding that the Veteran’s current hearing loss or tinnitus may otherwise be etiologically related to his service. On the dispositive question of a nexus between the current disabilities and service/exposure to noise therein, the only competent (medical) evidence is in the reports of the VA examinations and the opinions therein. The Board finds the 2016 VA examination and opinion to be entitled to great probative weight, as the examiner reviewed the Veteran’s medical history and included adequate rationale for the conclusions reached, citing to accurate factual data and relevant medical literature. While the Veteran is competent to report having experienced ringing in his ears and his perceptions of reduced hearing acuity, he is layperson, and not competent to provide a nexus opinion relating such disabilities to exposure to noise or acoustic trauma during remote service (absent a showing of onset in service/continuity since). The etiology of hearing loss and tinnitus in such cases is a medical question that requires medical expertise; he does not cite to supporting medical opinion or medical literature. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The preponderance of the evidence is against these claims; the appeals in the matters must be denied. 3. Secondary service connection for cirrhosis is granted. The Veteran contends that his cirrhosis of the liver is secondary to his hepatitis C. A February 2011 VA treatment record notes an assessment of cirrhosis secondary to hepatitis C. On August 2011 treatment, the assessments included cirrhosis of the liver, secondary to HCV. On January 2012 treatment, the Veteran was noted to have “cirrhosis secondary to HCV”. On May 2012 treatment, he was seen for follow-up of “hepatitis C with cirrhosis”. On June 2012 treatment, the Veteran was noted to have “stable well compensated cirrhosis secondary to hepatitis C”; it was noted that he was known to have chronic hepatitis C with cirrhosis since 2005. On November 2012 treatment, the Veteran was treated for “cirrhosis, secondary to HCV”. Additional treatment records reflect treatment for cirrhosis of the liver. On December 2016 VA examination, the examiner stated that the Veteran has liver cirrhosis which has been attributed to his hepatitis C. Service connection is warranted for a disability that was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. An April 2018 rating decision granted the Veteran service connection for hepatitis C. It is not in dispute that the Veteran has cirrhosis of the liver, which was diagnosed on VA examination. He has now established service connection for hepatitis C. The medical opinions of record in this matter support this claim. The treatment records consistently include assessments/diagnoses of cirrhosis secondary to hepatitis C, and the 2016 VA examiner clearly attributed the Veteran’s liver cirrhosis to his hepatitis C. The Board finds no reason to question the diagnoses and statements by the Veteran’s treatment providers, and the 2016 VA examiner, who agree that the Veteran’s service-connected hepatitis C was an etiological factor for his development of cirrhosis of the liver. All requirements for establishing secondary service connection are met; service connection for cirrhosis of the liver is warranted. REASONS FOR REMAND 4. Entitlement to service connection for a variously diagnosed psychiatric disability, to include as secondary to service-connected disability, is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a psychiatric disability because no VA examiner has opined whether, as the Veteran contends, it may be secondary to his service-connected disabilities. On January 2013 evaluation, it was noted that the Veteran has a history of numerous physical problems, including a long history of liver disease, and was distressed regarding the impact on his ability to be productive. The diagnoses included, in pertinent part, amnestic disorder not otherwise specified, provision; and adjustment disorder with depressed mood. On March 2013 VA treatment, depression was noted, and the assessments included memory loss and confusion secondary to encephalopathy from stage IV liver disease. On September 2013 VA examination, he attributed his recent depressive symptoms to loss of employment, marital difficulties, and memory problems. The examiner consulted with another physician, who expressed concern that the Veteran’s cognitive problems may be related to hepatic encephalopathy, and opined that the Veteran’s cognitive problems, especially memory problems, have contributed to his depressive feelings. An advisory medical opinion addressing the matter of a nexus between the Veteran’s psychiatric disability and his service connected disabilities is needed. The matter is REMANDED for the following: Arrange for a psychiatric evaluation of the Veteran to ascertain the nature and etiology of his psychiatric disability. On review of the record and examination of the Veteran, the examiner should: (a) Identify by diagnosis each psychiatric disability entity found (or shown by the record during the pendency of the instant claim. (b) Identify the likely etiology of each psychiatric disability entity diagnosed, indicating whether it at least as likely as not (i) was incurred in service or (ii) was caused or aggravated by (increased in severity due to) a service-connected disability. The examiner must include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel