Citation Nr: 20006941 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 12-35 035 DATE: January 28, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement ot a disability rating higher than 10 percent for a low back disability is remanded. FINDINGS OF FACT 1. The Veteran’s hearing loss disability was not present in service or for many years thereafter and is not shown to be etiologically related to active service. 2. Resolving reasonable doubt in the Veteran’s favor, tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1977. In February 2015 the Board remanded the appeal for additional development. The Board notes that the Veteran’s appeal originally included the issue of entitlement to service connection for degenerative arthritis of all joints, including shoulders, knees, hips, elbows, hands, and feet. However, during the pendency of the appeal, the agency of original jurisdiction (AOJ) granted those claims in a June 2015 rating decision. Therefore, this claim is not in appellate status at this juncture. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Since the RO last considered the claims on appeal, additional evidence, to include VA treatment records and examination reports, has been added to the Veteran’s claims file without a waiver of AOJ consideration of this evidence. Concerning the claim for service connection for tinnitus, as the Board will grant the benefits sought, the Board may consider this favorable evidence without referral to the AOJ. Concerning the claim for service connection for hearing loss, the additional evidence is cumulative of evidence already on file at the time of the June 2015 supplemental statement of the case. Therefore, a waiver of AOJ review is not required for these claims. Moreover, regarding the claim being remanded, there is no prejudice to the Veteran, as the AOJ will have an opportunity to review this evidence on remand. See 38 C.F.R. § 20.1304 (c). Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and is receiving a 100 percent disability. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). 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, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran claims that he currently suffers from bilateral hearing loss incurred in service. The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. In this case, the current medical evidence shows that the Veteran has bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. Thus, the first criterion for establishing service connection for hearing loss, a current disability, has been met. The Veteran has specifically reported that he was exposed to significant acoustic trauma during service while firing mortars, machine guns, and Gatling guns, without the use of hearing protection. His DD 214 shows that his military occupational specialty was a fire infantryman, which corroborates his report of in-service noise exposure. However, even if the Veteran was exposed to acoustic trauma during service, this is not the same as having sustained the type of injury that causes both chronic hearing loss and having resulting chronic disability. In other words, even if he was exposed to acoustic trauma during service, this does not automatically mean there were chronic residuals, including a hearing loss by VA standards which were caused thereby. The remaining element is a causal relationship between the present bilateral hearing loss disability and the noise exposure in service. The service treatment records document no complaint, finding, or diagnosis pertinent to hearing loss. On enlistment examination in July 1974, an audiogram recorded the pure tone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 10, 10, 0, and 5, in the right ear; and 15, 0, 0, and 10 in the left ear. The pure tone threshold at the 3000 Hertz level was not tested. On periodical examination in April 1976, the pure tone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 10, 5, 15, and 10, in the right ear; and 5, 5, 10, and 10 in the left ear. The pure tone threshold at the 3000 Hertz level was not tested. On examination in February 1977, it was noted that the Veteran’s ear canals were occluded. An audiogram recorded the pure tone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 15, 0, 10, and 10, in the right ear; and 5, 5, 10, and 15, in the left ear. The pure tone threshold at the 3000 Hertz level was not tested. In a report of medical history, the Veteran indicated that he was unsure as to whether he experienced any hearing loss. On subsequent ETS examination in April 1977, the Veteran’s ears were evaluated as normal. An audiogram recorded the pure tone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 10, 5, 10, and 5, in the right ear; and 5, 5, 10, and 10, in the left ear. The pure tone threshold at the 3000 Hertz level was not tested. After service, in August 1981 the Veteran complained of trouble with his left ear since service when he was in a heavy mortar unit. He endorsed occasional discharge from the left ear, but denied any hearing loss. An audiogram recorded the pure tone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 10, 10, 15, and 15, in the right ear; and 10, 10, 15, and 10, in the left ear. The pure tone threshold at the 3000 Hertz level was not tested. The clinician noted normal hearing, bilaterally. Thereafter, treatment records and VA examination reports dated after 2010 noted bilateral hearing loss for VA purposes. Thus, there is no competent evidence showing a hearing loss disability consistent with 38 C.F.R. § 3.385 during the Veteran’s first period of service. Nor is there competent evidence showing a hearing loss or disability within one year after the Veteran’s separation from service in 1977. While the United States Court of Appeals for Veterans Claims in Hensley v. Brown, 5 Vet. App. 155 (1993), held that 38 C.F.R. § 3.385 does not preclude service connection for a hearing disability where hearing was within normal limits on audiometric testing at separation from service, the lapse of a number of years between in-service noise exposure and a post-service hearing loss is evidence against a nexus between the noise exposure and the hearing loss. On the question of continuing symptoms since service, this gap of 33 years between service separation and medical documentation is one factor that tends to weigh against a finding that his bilateral hearing loss was incurred during service. The Board has weighed the lay and medical evidence and finds that the weight of it is against a finding of service connection for bilateral hearing loss under a presumptive basis, or by continuity of symptomatology. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013). In a medical statement in July 2010, a private audiologist noted that Veteran’s report of in-service noise exposure from mortar rounds in the infantry special weapons division from July 1974 to August 1977. The clinician noted that the Veteran had moderate to severe hearing loss in the right ear, with a severe to profound hearing loss in the left ear, which the audiologist indicated was consistent with a person who was exposed to a high level of noise for an extended period of time. On VA examination in August 2010, the Veteran reported a history of military noise exposure without hearing protection. He denied any occupational noise exposure while employed as a bailiff. The examiner diagnosed bilateral sensorineural hearing loss. The VA examiner opined, however, that because the Veteran’s hearing loss was normal at his April 1977 separation examination, as well as an August 1981 examination, his hearing loss occurred after service and, thus, was not related to his military noise exposure. On VA examination in April 2015, following a review of the claims file, opined that the Veteran’s bilateral hearing loss was less likely as not caused by or a result of noise exposure in the military. The examiner based the opinion on the fact that the induction and separation audiograms were within normal limits, bilaterally. The examiner explained that there was insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss could develop much later in one’s lifetime, long after the cessation of that noise exposure. Thus, based on the anatomical and physiological data available on the recovery process following noise exposure, it was unlikely that such delayed effects would occur. Similarly, on VA audiological examination in February 2018, a VA examiner opined that it was less likely as not that the Veteran bilateral hearing loss was due to service. The examiner based the opinion on the finding that despite conceded in-service noise exposure, the Veteran’s hearing was normal on separation from service with no significant shift in hearing thresholds from entrance to separation audiogram, or several years thereafter in 1981, thus providing evidence of that there was no permanent auditory damage during service or as a result of conceded military excessive noise exposure. Significantly, the Veteran endorsed a history of post-service excessive noise exposure from farm equipment, including a tractor, and fire arms, with hearing protection. He reported a 36-year occupational history in law enforcement with exposure to gun fire. The Board finds the opinion of the VA examiners to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred the current bilateral hearing loss as a result of service. The examiners’ findings were based on a review of the evidence, including the service treatment records and examination report, which did not substantiate a finding that the Veteran’s bilateral hearing loss is the result of acoustic trauma sustained in service. The examiners considered the complete record and the Veteran’s contentions, and provided an explanation as to why the evidence does not support a finding that his current bilateral hearing loss was due to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the opinions are of significant probative value. Significantly, there is no competent medical evidence that contradicts the VA examiners’ opinions. The Board has considered the statements from the Veteran as to his persistent hearing problems dating back to service. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, but he cannot self-diagnose because of the medically complex nature of such a diagnosis. Hearing loss can have various etiologies, such as acoustic trauma, head trauma, diseases, ototoxic drugs, etc. The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss. As such, that doctrine is not applicable in the instant appeal, and the claims must be denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. 2. Entitlement to service connection for tinnitus The Veteran contends that he developed tinnitus due to excessive noise exposure from firearms during service. The Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly during the course of this claim, and health care providers, to include the VA examiner in August 2010, April 2015, and February 2018, appeared to have found the Veteran’s account of current tinnitus credible. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). Thus, a current disability has been established. As noted, the Veteran’s military occupational specialty was fire infantryman, which corroborates his report of in-service noise exposure. The service treatment records do not document any complaints consistent with tinnitus. After service, VA treatment records after 2010 noted complaints of tinnitus. In 2016 he reported onset of tinnitus 30 years earlier. A VA examiner in August 2010 noted the Veteran’s report of tinnitus for many years, although he was unsure of the exact onset date. The examiner opined that his tinnitus was related to hearing loss. An opinion as to whether the condition was due to service was not provided. A VA examiner in April 2015, indicated that in the absence of an objectively verifiable noise injury, the association between the claimed tinnitus and noise exposure could not be assumed to exist. However, as noted, here military acoustic trauma has been conceded. A VA examiner in February 2018, the Veteran reported onset of tinnitus during service while stationed in Germany doing hand loading a big bun mortar rounds. The examiner opined that the Veteran’s tinnitus was at least as likely as not due to acoustic trauma in service. A veteran is competent to describe observable symptoms such as ringing in the ears. See Jandreau v. Nicholson, 492 F.3d at 1376-77; See Charles, 16 Vet. App. 370. The Veteran consistently reported tinnitus since service associated with the performance of his duties as fire infantryman. As there is a current diagnosis of tinnitus, evidence of in-service acoustic trauma, credible testimony from the Veteran regarding onset of tinnitus in service associated with in-service noise exposure, and competent medical evidence for and against the claim, the Board finds that the Veteran’s competent and credible testimony provides a nexus linking his current tinnitus to his in-service noise exposure, and the balance of positive and negative evidence is in relative equipoise. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran’s current tinnitus and active service. Therefore, service connection for tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND 1. Entitlement ot a disability rating higher than 10 percent for a low back disability is remanded. The Board’s February 2015 decision directed a new examination to assess the current severity of the Veteran’s back disability. As no new examination has been provided, a remand is required to insure compliance with the Board’s prior directive. Stegall v. West, 11 Vet. App. 268 (1998). Considering the 100% rating, the Veteran, in consultation with his representative, may wish to withdraw the remaining claim (in writing please). In any event, unless the issue is withdrawn, the Board must address this issue. The matters are REMANDED for the following action: 1. Obtain all relevant VA treatment records, if any, not already in the claims file. If possible, the Veteran should get these records and submit them himself to expedite the case. It would also be of great help to the Board. 2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected back disability. The claims file must be made available to the examiner. All necessary tests are to be conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. a) The examiner should determine the range of motion of the Veteran’s back. Range of motion testing must include both passive and active motion, and in weight-bearing and nonweight-bearing conditions, and the range of the opposite undamaged joint, where applicable. It should be indicated whether and at what point during the Veteran’s range of motion he experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. b) If the Veteran endorses flare-ups of symptoms, the examiner must comment on the functional limitations of the back during such flare-ups, and the effect of pain on range of motion. If there is no flare-up at the time of the examination, the examiner is still asked to estimate further functional limitations based on the Veteran’s subjective complaints and history. The examiner should also estimate any additional functional impairment after repeated use over time-based on the evidence of record and the Veteran’s lay descriptions. The examiner should assess additional functional impairment on flare-up and after repeated use over a period of time in terms of the degree of additional range-of-motion loss, if possible. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. c) The examiner should provide findings responsive to the criteria for rating intervertebral disc syndrome (IVDS) and specifically, comment on the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician), if there are any, in the last 12-onth period. d) Describe all neurological manifestations and symptomatology and offer an opinion as to whether the Veteran has any separately ratable neurological disability (in addition to orthopedic disability) as a manifestation of the service-connected lumbar disc disease. The examiner should discuss the severity of any radiculopathy or neuropathy found to be present in the lower extremities and indicate whether the degree of impairment is best characterized as mild, moderate, moderately severe, or severe. e) The examiner should assess the impact of the Veteran’s service-connected back disability on his activities of daily living, including his occupational functioning. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner’s report that she/he cannot provide and opinion without resort to mere speculation is inadequate unless the examiner provides a rationale for that statement. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.