Citation Nr: 19190375 Decision Date: 12/02/19 Archive Date: 12/02/19 DOCKET NO. 15-25 793 DATE: December 2, 2019 ORDER Service connection for bilateral tinnitus is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Service connection for a liver disability, also claimed as hepatitis C, to include cirrhosis or other residuals, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran currently has bilateral tinnitus, and the evidence of record is in equipoise regarding whether it is causally related to his military service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1973 March 1976 and from March 1976 until April 1989. The Veteran received an other than honorable discharge for the period of service from March 1976 until April 1989; however, a November 1989 administrative decision determined that the Veteran served honorably for VA purposes from June 4, 1973, to November 14, 1985 (the Veteran’s active service). Thus, only the Veteran’s service from November 15, 1985 until April 1989 is a bar to benefits for VA purposes. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in September 2019; a transcript of that hearing is of record. The Veteran’s service connection claim for a low back disability was previously considered and denied in December 1989 for lack of evidence that the Veteran’s current low back disability is causally related to his active military service. Although a prior final denial such as this generally requires the Board to adjudicate the threshold issue of whether the Veteran has submitted new and material evidence to reopen previously denied claims, in the present case, official U.S. Army personnel records from the Veteran’s period of active duty appear to have been associated with his claims file for the first time in September 2014. Where additional relevant official service department records are received by VA at any time after a claim has been adjudicated, and such records existed and had not been associated with the claims file when VA first decided the claim, then the claim must be reconsidered notwithstanding the new and material evidence provisions of 38 C.F.R. § 3.156(a). See 38 C.F.R. § 3.156(c). Accordingly, because the Veteran’s service treatment records had not been associated with the claims file at the time of the December 1989 rating decision, his service connection claim for a low back disability warrants reconsideration, and the issue of new and material evidence is thus rendered moot. Service Connection Service connection for bilateral tinnitus is granted. The Veteran contends that he currently suffers from bilateral tinnitus as a result of his exposure to military acoustic trauma during his active service that emanated from heavy machinery, artillery, tanks, and weapons fire. Service connection for a disability requires competent and credible evidence of the following: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 252 (1999). In addition, where a veteran has served for at least ninety days during a period of war or after December 31, 1946, and develops an enumerated chronic disease, including tinnitus, to a compensable degree within one year from the date of separation from service, such disease shall be presumed to have been incurred or aggravated in service even though there is no evidence of such disease during the period of service. See Walker v. Shinseki, 708 F.3d 1331, 1338-1339 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015); 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology may also establish service connection for diseases recognized as chronic for VA purposes. See Walker, 708 F.3d at 1338-1339. The Veteran contends that his exposure to military acoustic trauma has resulted in his recurrent symptoms of tinnitus, which onset during his qualifying military service, and which he describes as a constant bilateral ringing in the ears and a tingling sensation. The Board finds that the Veteran is competent to describe the observable, non-medical symptoms of his hearing disability, such as ringing in the ears. See Charles v. Principi, 16 Vet. App. 370 (2002). In addition, the Veteran’s lay statements are credible because they are consistent throughout the record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Accordingly, the Board finds that the Veteran currently has bilateral tinnitus. Regarding an in-service injury, the Board finds that the Veteran is competent to describe his exposure to loud noises, such as those caused by military machinery, artillery, and weapons fire. See Falzone v. Brown, 8 Vet. App. 398, 406 (1995). In addition, the Board finds the Veteran’s lay statements regarding his in-service exposure to hazardous noise to be credible because, as stated above, such statements have been consistent throughout the record and are confirmed by the evidence of record regarding his military service. See Caluza, 7 Vet. App. at 511. The Veteran’s military records confirm his military occupational specialty as a welder in a maintenance battalion, during which it is certainly plausible that he would have been exposed to hazardous military noise emanating from heavy machinery, tanks, and weapons fire. Moreover, although the Veteran’s service treatment records do not indicate that he reported symptoms of tinnitus during service, the Board acknowledges that lay evidence cannot be found to lack credibility solely on the basis of an absence of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Accordingly, because the Veteran has provided competent and credible testimony, the Board finds that he has established an in-service injury of bilateral acoustic trauma along with in-service symptoms of tinnitus. In addition, the Board finds the evidence of record to be in equipoise regarding the causal relationship between the Veteran’s in-service noise exposure and his current bilateral tinnitus, as the Veteran has submitted competent and credible lay testimony establishing that his current tinnitus symptoms are causally related to his exposure to military acoustic trauma, and his reports of tinnitus have been consistent throughout the record. See Caluza, 7 Vet. App. at 511. Therefore, the Board finds that the evidence of record to be in relative equipoise as to whether the Veteran’s current bilateral tinnitus is as likely as not due to his in-service exposure to military acoustic trauma, as his lay statements regarding his in-service noise exposure and the onset of his symptoms are entitled to significant probative value due to their consistency and credibility. Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for bilateral tinnitus is warranted on a direct basis. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. Unfortunately, the Veteran’s service connection claim for his low back disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that his current low back disability is causally related to his active military service, including injuries he sustained during service, as well as subsequent treatment for low back pain. During his September 2019 hearing testimony before the undersigned, the Veteran testified that he initially injured his low back in 1974 during service, and that he was continually treated for low back pain during service. In fact, the Board notes that the Veteran’s service treatment records (STRs) reflect that he was treated on multiple occasions during service for his low back condition, to include the August 1974 injury incurred by an in-service from a military tank, diagnosed as a soft tissue injury, and an April 1975 injury incurred by lifting heavy objects, diagnosed as a low back strain. In addition, the Veteran’s STRs reflect treatment for low back pain on multiple occasions throughout his active service, including on one occasion in April 1985, and in May 1986, a medical board was convened to evaluate the Veteran’s low back and neck conditions, to include muscle strains and spasms, for medical discharge. In August 1987, the Veteran again faced a medical board due to his low back condition, then diagnosed as chronic mechanical back pain. However, the Board cannot make a fully informed decision on the issue of service connection for the Veteran’s low back disability because no VA examiner has opined as to the nature and etiology of his current condition and whether it is causally related to his active military service. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, a VA examination is necessary to determine whether the Veteran’s low back disability is related to his active military service and thus entitled to service connection on any basis. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Service connection for a liver disability, also claimed as hepatitis C, to include cirrhosis or other residuals, is remanded. Unfortunately, the Veteran’s service connection claim for a liver disability, also claimed as hepatitis C, must also be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that he suffers from a current liver disability, previously diagnosed as hepatitis C, which is causally related to certain exposures to the virus during his active service, namely, high risk sexual activity and an “air gun” used by the Army to administer vaccines. During his September 2019 hearing testimony before the undersigned, the Veteran testified that he was first diagnosed with hepatitis C in 2012, and that he has never received a blood transfusion or used needles; however, the Veteran’s VA treatment records indicate his prior report of intravenous drug use “ several times ” in 1979 and 1986, as well as intranasal cocaine use in the 1990s, and a left ear piercing in 1976. In a January 2016 statement, the Veteran denied experiencing any risk factors during service other than “high risk sexual activity” and vaccines administered by a “shot gun.” Thus, the issue before the Board involves whether it is more likely than not that the Veteran’s claimed liver disability had its onset during his qualifying military service as a result of his exposure to hepatitis C via high risk sexual activity, intravenous drug use, or vaccinations administered by an “air gun,” or whether the onset of the Veteran’s claimed liver disability is more appropriately attributed to incidents that occurred post-service, namely his post-service intravenous drug use or intranasal cocaine use. In November 2017, the Veteran was afforded a VA examination which culminated in a report declining to find a nexus between the Veteran’s hepatitis C diagnosis and his in-service high risk sexual activity or drug use; instead, the report found it at least as likely as not (50 percent or greater probability) that the Veteran’s liver disability was caused by post-service incidents such as intravenous drug use or intranasal cocaine use on the following grounds: (1) the record contains no objective medical evidence to indicate otherwise; and (2) VA treatment records dated February 2014 “document[] that the Veteran’s greatest/most prolonged exposure occurred post-service and therefore based on probability his infection occurred [post-service].” However, the November 2017 VA examination report failed to address the Veteran’s January 2016 contention, reiterated during his September 2019 hearing testimony, regarding the in-service air gun inoculation as a possible method of hepatitis transmission, nor did it consider the possible residuals of the Veteran’s hepatitis C, such as cirrhosis or hepatic stenosis. Moreover, the November 2017 report also fails to provide a rationale in support of the claim that the Veteran’s hepatitis C infection was more likely to have occurred post-service based upon the “greatest/most prolonged” exposure. When VA undertakes to provide a VA examination or obtain a VA medical opinion, it must ensure that the examination or opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that an examination report sufficiently inform the Board of a medical expert’s judgment on a medical question, rely upon accurate factual premises, including the Veteran’s lay statements regarding in-service incidents, and present a fully articulated, sound rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the failure of a medical opinion to adequately consider all relevant evidence of record, including all possible diagnoses and the Veteran’s competent lay testimony regarding in-service incidents, renders it devoid of any probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). Accordingly, as the current record before the Board lacks competent evidence sufficient to determine the etiology of the Veteran’s current liver disability, the Veteran’s claim must be remanded for another VA examination to determine whether the Veteran’s liver disability is related to his qualifying military service and thus entitled to service connection. See Colvin, 1 Vet. App. at 175. 3. Entitlement to service connection for bilateral hearing loss is remanded. Unfortunately, the Veteran’s service connection claim for bilateral hearing loss must also be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran testified at his September 2019 hearing before the undersigned that he currently suffers from bilateral hearing loss that originally onset during service as a result of his repeated exposure to military acoustic trauma, including heavy machinery, artillery, tanks, and weapons fire. In October 2012, the Veteran was afforded an audiological VA examination which culminated in a report that ultimately declined to find either hearing loss for VA purposes in the Veteran’s right ear or a nexus between his left hearing loss and his in-service exposure to hazardous noise, on the grounds that the Veteran’s STRs reflect hearing thresholds within normal limits and no significant hearing threshold shifts during service. As stated above, VA must ensure that a medical examination or opinion is adequate, see Barr, 21 Vet. App. at 310-11, and the reliance by a medical opinion upon a significant factual inaccuracy renders it devoid of any probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Moreover, reliance on the absence of evidence in the Veteran’s STRs, contravenes applicable VA regulations and precedential case law allowing the award of direct service connection where supported by sufficient evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); 38 C.F.R. § 3.303(d). Accordingly, in light of the foregoing, the Veteran’s hearing loss claim must be remanded for another VA examination to consider all the relevant evidence of record, including his lay statements and VA treatment records, and to determine whether his current hearing loss is related to his reported in-service exposure to hazardous noise and thus entitled to service connection. See Colvin, 1 Vet. App. at 175. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board recognizes that any decision regarding the Veteran’s claims being remanded herein may impact the Veteran’s TDIU claim; therefore, consideration of his TDIU claim must be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with a licensed audiologist to determine the nature and etiology of the Veteran’s current bilateral hearing loss disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s current hearing loss is due to his in-service exposure to military acoustic trauma or is otherwise causally or etiologically related to his military service. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 3. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s current back disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s current back disability is due to his in-service incident or is otherwise causally or etiologically related to his military service. The examiner must specifically discuss the August 1974 and April 1975 injuries and the Veteran’s lay testimony as to symptoms. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 4. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s liver disability, to include hepatitis C. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to the following: a) whether the Veteran currently has a diagnosis of hepatitis C or any residuals thereof; b) whether the Veteran has had a diagnosis of hepatitis C at any time during the appeal period (from December 17, 2014) or any residuals thereof; and c) If the Veteran is found to have a diagnosis of hepatitis C or any residuals thereof, whether it is at least as likely as not (i.e., 50 percent or greater probability) that any diagnoses during the appeal period of hepatitis C or residuals of hepatitis C were incurred during active service or related to any risk factors during the Veteran’s active service, to include the following: (i) the use of an air gun to administer vaccinations; (ii) high-risk sexual activity; or (iii) intravenous drug use. The examiner must comment on all lay statements provided by the Veteran. (Continued on the next page)   The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale, Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.