Citation Nr: 20072852 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 15-39 971 DATE: November 12, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus due to is denied. Entitlement to service connection for chronic left ear infections is denied. REMANDED Entitlement to service connection for residuals of low back injury is remanded. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran’s right ear hearing loss manifested at a level that VA regulations define as disabling. 2. The preponderance of the evidence of record is against a finding that the Veteran’s left ear hearing loss had onset in active service or is otherwise causally related to active service. 3. The preponderance of the evidence of record is against a finding that the Veteran’s tinnitus had onset in active service or is otherwise causally related to active service. 4. The preponderance of the evidence of record is against a finding that the Veteran’s chronic left ear infections had onset in active service or are otherwise causally related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 2. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). 4. The criteria for entitlement to service connection for chronic left ear infections have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1972 to August 1975. Upon initial review of this case the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. As discussed further below, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268- 271 (1998). Service Connection General Legal Requirements Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 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). “Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. 1. Entitlement to service connection for right ear hearing loss is denied. Certain organic diseases of the nervous system are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA deems sensorineural hearing loss (SNHL) as among the organic diseases of the nervous system that are covered. See VA Under Secretary for Health Memorandum (October 1995); see also Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015). Not all impaired hearing is considered a disability by VA for the purposes of compensation for service-connected disabilities. 38 C.F.R. § 3.385 provides that, for VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) 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. Discussion The July 2012 VA examination report (07/09/2012 VA Examination, P. 4-5) reflects highly likely in-service noise exposure. Objective audio examination revealed the Veteran’s right ear hearing to have manifested as follows: HERTZ 500 1000 2000 3000 4000 SPEECH RIGHT 20 25 25 25 25 96% The examiner noted that the examination results were valid for rating purposes. The objective findings on clinical examination show that the Veteran’s right ear decrease in hearing acuity does not meet the threshold that VA deems to be disabling. 38 C.F.R. § 3.385. No other evidence of record shows right ear hearing loss meeting the standard under 38 C.F.R. § 3.385. Hence, the Board is constrained to find that the preponderance of the evidence is against the claim. Id. 2. Entitlement to service connection for left ear hearing loss is denied. Again, for the 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 (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 db or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The service treatment records reflect that the Veteran’s hearing manifested as follows: AUG 1972 HERTZ 500 1000 2000 3000 4000 LEFT 25 15 5 0 0 JUL 1973 5 5 5 10 MAY 1975 10 10 0 0 0 See 02/13/2012 STR-MED, P. 5, 7. The July 2012 examination report reflects that the Veteran’s left ear hearing acuity manifested as follows: HERTZ 500 1000 2000 3000 4000 SPEECH LEFT 25 35 40 60 70 100% The examiner noted that the test results were valid for rating purposes, and she diagnosed sensorineural hearing loss. The examiner opined, however, that it was not at least as likely as not that the left ear hearing loss had onset in active service. While noting the Veteran’s in-service noise exposure, the examiner found no indication in the STRs that the Veteran complained of hearing loss, and further found that the three audiograms set forth above show that the Veteran’s hearing was normal bilaterally. See 07/09/2012 VA Examination, P. 8. The examiner noted further that the three in-service audiograms showed no significant threshold shift in the Veteran’s hearing during his active service. At the hearing, the Veteran’s testimony reiterated his written submissions, wherein he asserted that his exposure to gunfire during basic training, and the performance of his duties in a heavy construction unit caused his hearing loss. The Board interprets part of his testimony to have suggested that he noticed a decrease in his hearing right after his basic training [from the time we started shooting… guns]. He testified further that the exhaust pipe of the trucks that he drove was on the left side and driving with the window open placed him right next to the noise. He did not report it or complain because he wanted out of the service, and he did not want to be retained like he was for his back injury. He conceded that he was issued ear plugs but asserted that they did not help much. The Veteran also testified that a hearing test conducted by the postal service revealed a problem in 1976. See 04/26/2017 Hearing Transcript, P. 2-8. The Board acknowledges that the Veteran is fully competent to testify to the events of his active service, to include injury and the onset of symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also 38 C.F.R. § 3.159(a)(2). The Board also notes that a Report of Medical History at the time of his examination for separation is not of record. Nonetheless, the Veteran’s testimony and recall, however, still must be tested for credibility and reliability. As the Veteran conceded, he was in fact issued ear plugs in service, as his duties required that he be placed in a Hearing Surveillance Program. See 02/13/2012 STR-MED, P. 21. Although he asserted that they did not do much, he did not deny having used them. The Board finds that the objective evidence of record, as interpreted by an audiologist, refutes the Veteran’s assertion that his hearing loss had onset in active service. As to whether it manifested at least to a compensable degree within one-year of his active service, the Board again finds that the evidence weighs against the claim. His testimony as to the date of a hearing test administered by the postal service was vague. Although he testified that it occurred in 1976, he was not certain that it was, nor did he indicate what month of 1976. Further, he testified that he was told that it was low, and that he barely passed. The Board cannot surmise that the test in fact revealed a hearing loss that meet VA standards. The Veteran also testified that he went 25 years after service without seeing a doctor. Perhaps he did not consider reporting for a hearing test as seeing a doctor. Nonetheless, his testimony was vague and uncertain. Hence, the Board finds that the preponderance of the evidence is against a finding that his hearing loss manifested at least to a compensable degree within one year of service. The VA audiologist also opined that it was not at least as likely as not that the Veteran’s left ear hearing loss was otherwise causally related to active service. In addition to noting normal hearing during active service with no significant threshold shift, the examiner also noted that the Veteran’s hearing loss was asymmetrical, with the left ear being worse, and that the Veteran reported that he noticed the difference 4 to 5 years before the examination. The examiner reviewed the claims file, took the Veteran’s lay history, and examined the Veteran. Further, the Board finds that the audiologist provided an adequate rationale for her opinion. Hence, the Board finds the opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board notes the Veteran’s assertion that his in-service noise exposure is the etiology for his hearing loss. There are certain disorders or cause and effect relationships on which a layperson’s opinion may be competent, such as observing a broken arm or leg immediately after a fall. The Board makes such determinations on a case-by-case basis. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that opining on the etiology of an asymmetrical hearing loss, especially decades after service, is complex and requires medical training. 38 C.F.R. § 3.159(a)(1). There is no evidence that the Veteran has any medical training. Hence, his opinion is not probative on the issue. Thus, the Board is constrained to find that the preponderance of the evidence is against the issue on both a presumptive and direct basis. 38 C.F.R. §§ 3.307(a)(3), 3.309(a), 3.303. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. 3. Entitlement to service connection for tinnitus is denied. VA deems tinnitus to be an organic disease of the nervous system that is presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. The Board acknowledges that the Veteran is competent to identify tinnitus and when he first experienced it. 38 C.F.R. § 3.159(a)(2). The VA examination report reflects the Veteran’s reported intermittent tinnitus in the left ear only. He did not provide an exact date of the onset of his tinnitus, but he estimated it as 10 years earlier, which would have been 2009. See 07/09/2019 VA Examination, P. 9. The Veteran’s hearing testimony did not substantively contradict what the examiner noted. The Veteran testified that he first noticed the tinnitus when he returned home from active service and sobered up, which the Board interprets to mean that he either ceased or reduced chronic alcohol consumption. Hearing Transcript, P. 6. The examiner opined that it was not at least as likely as not that the Veteran’s tinnitus is causally connected to his active service, to include noise exposure. The examiner opined that, based on the review of the claims file, the Veteran’s tinnitus is determined to be associated with his hearing loss; and, since it is not at least as likely as not that the hearing loss is causally connected to active service, including noise exposure, the same rationale applies to the tinnitus. Thus, the Board is constrained to find that the preponderance of the evidence is against the issue on both a presumptive and direct basis. 38 C.F.R. §§ 3.307(a)(3), 3.309(a), 3.303. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. 4. Entitlement to service connection for chronic left ear infections is denied. Duty to Assist The Veteran testified that his non-VA physician treated him for his ear infections, not VA He testified further that had copies of Dr. M’s records at home, and that he could provide them within 30 days. See Hearing Transcript, P. 8; see also 05/29/2019 CAPRI, P. 26. The undersigned held the record of the hearing open for receipt of additional evidence from the Veteran. No additional evidence has been received. The AOJ did not afford the Veteran an examination as part of the development of this claim. On initial review the Board determined that an examination was in fact triggered by the evidence of record, to include the Veteran’s hearing testimony. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board remand also directed that the AOJ assist the Veteran with obtaining records from his non-VA physician, Dr. M, whom the Veteran testified treated him for his ear infections. In compliance with the Board remand, the AOJ made several attempts to obtain any records associated with the Veteran that Dr. M may have had, including an instance of faxing the VA Form 21-4142 to his office. See 07/08/2019 VA 21-0820. AOJ letters informed the Veteran of all attempts to obtain any records extant from Dr. M, and that it was ultimately the Veteran’s responsibility to obtain them. See, e.g., 11/07/2019 Subsequent Development Letter. No additional records were obtained. Nonetheless, the Board finds that the AOJ expended all reasonable efforts to obtain them. Hence, there was substantial compliance with the Board remand. See 38 C.F.R. § 3.159(e); Stegall, 11 Vet. App. at 211. Thus, the Board finds no pre-decision duty-to-assist error. Discussion The STRs do not contain any entries that are related to complaints of or treatment for ear infections. The May 1975 Report of Medical Examination for Discharge from Active Service reflects that the Veteran’s ears were assessed as normal. See 02/13/2012 STR-MED, P. 8. At the Board hearing the Veteran testified that he had an ear infection the prior year (2016), and that Dr. M treated him for it. In response to questions from the undersigned, the Veteran did not testify that he had infections during his active service. His overall testimony on the infections issue, during which he included symptoms of vertigo, was that his symptoms started after service. Hearing Transcript, P. 15. The examination report (12/2/2019 C&P Exam, 2nd Entry) reflects a diagnosis of left ear otitis media, suppurative, chronic. The examiner noted that the onset of the infections was 1975 [presumedly per the Veteran’s lay reports], the condition had remained the same, and that the Veteran currently had left ear infections about twice a year. Id., P. 2. The examiner did not indicate any other associated ear disorder or symptom. Examination of the ear canals and tympanic membranes was normal, and the examination for indication of vertigo was negative. Id., P. 5. The examiner opined that it was not at least as likely as not that the Veteran’s currently diagnosed left ear otitis media had onset in active service or is otherwise causally connected to active service. The examiner found no evidence in Veteran’s STRs or medical records of left ear infection to which his current left ear infection can be linked. See 12/02/2019 C&P Exam, 3rd Entry. The Board acknowledges that, generally, a rationale based solely on the absence of medical documentation, without more, is deemed inadequate. In this case, however, that Board has found that the Veteran did not in fact assert that he experienced left ear infections during his active service and, as the examiner noted, the Veteran’s ears were assessed as normal at his physical examination before separation. The Board does not speculate on what may or may not be in Dr. M’s records. The Veteran was afforded all reasonable opportunity to obtain them. Hence, the Board is constrained to find that the preponderance of the evidence is against the claim. 38 C.F.R. § 3.303. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 57-58 (1990); see also 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for residuals of low back injury is remanded. The Veteran testified that, in addition to a motor vehicle accident (MVA), he sustained a lifting injury of his back. Using the date of his separation, August 1975, as a reference, he placed the date as Summer 1975. See Hearing Testimony, P. 17. Although it is not clear from the record if the Veteran’s reference to Summer was in strict conformity with the seasonal solstices, there is nothing to indicate to the contrary. As noted in the discussion above, the Veteran’s physical examination was conducted in May 1975, and there are two July 1975 entries related to GI symptoms and complaints. See 02/13/2012 STR-MED, P. 19-20. There is no document in the STRs that certifies that the Veteran’s physical condition did not change in the interim between his examination and his separation. The Board’s experience, however, is that such a document is frequently found in the Military Personnel Records (MPRs), and there is no indication that the AOJ requested the MPRs. The MPR, if extant, should be obtained. The matters are REMANDED for the following action: 1. The AOJ shall obtain any MPRs extant associated with the Veteran and add them to the claims file. 2. After the above is complete, regardless of whether any additional records are obtained, send the claims file to the clinician who conducted the December 2019 examinations and rendered the nexus opinion. Inform the clinician that it is not clear from the examination report, to include the rationale given for the negative opinion, whether the Veteran’s lay reported history of his claimed low back injury was considered. Inform the clinician further that the absence of contemporaneous medical documentation, alone, without explanation, is not an adequate basis for discounting a claimant’s lay reports. Also inform the clinician that the Board has not yet made a determination on the Veteran’s credibility concerning the low back claim. Nonetheless, the clinician should still consider his lay report of an in-service injury and opine whether it is at least as likely as not consistent or not with the currently diagnosed low back disorder. That should be part of the clinician’s rationale for opining on whether it is at least as likely as not that the currently diagnosed low back disorder had onset in active service or is otherwise causally connected to active service. If the clinician is no longer available, send the digital claims file to an equally qualified clinician. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.