Citation Nr: 19106920 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-12 520 DATE: January 29, 2019 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include an unspecified neurocognitive disorder, is remanded. Entitlement to service connection for residuals of a stroke is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The Veteran has a bilateral hearing loss that does not qualify as a disability for VA compensation purposes. 2. The Veteran has tinnitus; however, his tinnitus is not shown to have been incurred in service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for an award of service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from November 1968 to November 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from December 2013 and December 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). By those decisions, the RO, in pertinent part, denied service connection for bilateral hearing loss, tinnitus, an acquired psychiatric disability (to include an unspecified neurocognitive disorder), residuals of a stroke, hypertension, COPD, and GERD. The Veteran’s attorney has submitted a timely notice of disagreement (NOD) with regard to denials of service connection for diabetes mellitus, type 2, and several other disabilities. Thus far, no statement of the case (SOC) has been furnished with respect to those issues. See, e.g., 38 C.F.R. § 19.29. This matter is discussed in further detail, below. Service Connection The Veteran seeks to establish service connection for hearing loss and tinnitus. He maintains that his hearing loss and tinnitus are linked to his military occupational specialty (MOS). In his August 2012 statement in support of claim, the Veteran wrote that he had experienced tinnitus ever since his exposure to acoustic trauma in service. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including tinnitus and sensorineural hearing loss—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 (1990). 1. Bilateral Hearing Loss In the present case, the preponderance of the evidence demonsrates that the Veteran does not have a current bilateral hearing loss disability as defined by VA. The report of a January 2017 VA audiology examination reflects the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 20 20 LEFT 25 25 15 20 25 A controlled speech discrimination (Maryland CNC) test revealed scores of 100 percent in both the right and left ears. As noted above, impaired hearing is considered a “disability” for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. The January 2017 audiology report findings do not demonstrate hearing loss that align with the criteria set forth in 38 C.F.R. § 3.385. Because the preponderance of the evidence demonstrates that the Veteran does not have a current disability upon which to predicate an award of service connection for hearing loss, the first essential criterion for a grant of service connection has not been met. Therefore, the claim must be denied. 2. Tinnitus Following review of the evidence in this case and the applicable law and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus. The Veteran initially claimed to experience tinnitus ever since his exposure to acoustic trauma in service. See August 2012 Statement in Support of Claim. On January 2017 VA audiology examination, the Veteran indicated that he experienced intermittent, bilateral tinnitus with a buzzing sensation. He reported that he first noticed his tinnitus approximately two years prior. The audiologist explained that tinnitus and hearing loss, though often present together, need not be mutually occurring. The January 2017 examiner noted the Veteran’s duties as a plane pusher in the Navy; however, according to her report, the Veteran denied any military noise exposure. She also noted that the Veteran’s activities following military separation included service as firefighter, recreational hunting, and target shooting. The audiologist cited to medical research addressing the proximity of noise exposure and symptoms of hearing loss or tinnitus. She opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. She explained that there were no complaints of tinnitus in the Veteran’s records; he only noticed his tinnitus two years prior; and he did not relate his tinnitus to anything specific in the military. Several cases have addressed whether the existence of tinnitus may be established by lay evidence. See, e.g., Caluza v. Brown, 7 Vet. App. 498, 504 (1995) (where determinative issue does not require medical expertise, lay evidence may suffice by itself); Falzone v. Brown, 8 Vet. App. 398, 406 (1995); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay evidence is competent to establish features or symptoms of injury or illness); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (where there is lay evidence of in-service tinnitus and of tinnitus ever since service and medical evidence of a current diagnosis, such evidence suffices to indicate that an appellant’s disability may be associated with his service). The Board acknowledges the Veteran’s assertions in his August 2012 statement, applying Charles v. Principi to the merits of his own claim. The Board concludes, however, that the facts of the instant case differ significantly from those in Charles. Specifically, the Veteran reported during his January 2017 audiology examination that he had only experienced an onset of tinnitus two years prior. Such a statement is in direct contradiction to his claim that his tinnitus symptoms began in service. Furthermore, in Charles, there was no medical nexus opinion addressing the appellant’s claim. Here, there is. To the extent that the Veteran’s opinion regarding the etiology of his tinnitus differs from the opinion of the January 2017 audiologist, the Board finds the opinion of the audiologist to be more probative. Although the Veteran is competent to establish the existence of his tinnitus symptoms, his inconsistent statements regarding their onset lack credibility and are, therefore, less probative than the medical nexus opinion. Based on the foregoing, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s tinnitus is not causally or etiologically related to service. The claim must be denied. REASONS FOR REMAND In March 2018, the Veteran’s attorney filed a timely NOD with regard to a March 2017 rating decision that declined to revise, on the basis of clear and unmistakable error, a December 2013 rating decision that denied service connection for diabetes mellitus, type 2, and several other disabilities (specifically, ischemic heart disease, peripheral neuropathy of the upper and lower extremities, peripheral vascular disease of the lower extremities, cataracts, and erectile dysfunction). To date, no SOC as to these issues has been furnished. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (Court) held that when an appellant files a timely notice of disagreement as to a particular issue, and no SOC is furnished, the Board should remand, rather than refer, the issue for the issuance of an SOC. Based on the legal theories that have been advanced, the Veteran’s claims for service connection for an acquired psychiatric disorder, GERD, hypertension, residuals of a stroke, and COPD are inextricably intertwined with his pending appeal with respect to service connection for type 2 diabetes mellitus. As such, further action on those claims will be deferred until such time as the required action on his diabetes claim has been completed. These matters are REMANDED for the following action: 1. Re-examine the Veteran’s claim for revision, on the basis of clear and unmistakable error, a December 2013 rating decision that denied service connection for diabetes mellitus, type 2, ischemic heart disease, peripheral neuropathy of the upper and lower extremities, peripheral vascular disease of the lower extremities, cataracts, and erectile dysfunction. Unless the claims are resolved by granting the benefits sought, or the NOD is withdrawn, furnish an SOC to the Veteran and his representative, in accordance with 38 C.F.R. § 19.29, concerning those claims. The issues should be certified to the Board for appellate review if, and only if, a timely substantive appeal is received. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claims remaining on appeal should be readjudicated based on the entirety of the evidence. If any of the benefits sought remain denied, the Veteran and his representative should be issued a supplemental SOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel