Citation Nr: 20021908 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 20-07 288 DATE: March 27, 2020 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to service connection for lumbosacral strain with degenerative arthritis (claimed as lower lumbar condition) is remanded. Entitlement to service connection for right foot condition is remanded. Entitlement to service connection for left foot condition is remanded. FINDINGS OF FACT 1. There Veteran’s tinnitus was incurred during his active service. 2. The preponderance of the evidence of record is against finding that the Veteran’s bilateral hearing loss has not been shown to have had its onset in service, within one year of separation from service, and it is not etiologically related to any incident of his period of active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to November 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Proving service connection generally requires competent medical or lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for deciding whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus as organic diseases of the nervous system, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptomatology after service if the condition is noted during service (or in a presumptive period) but not shown to be chronic at the time. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss and tinnitus (as organic diseases of the nervous system) if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). 1. Entitlement to service connection for tinnitus is granted. Tinnitus is defined as “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1956 (31st ed. 2007). As tinnitus is “subjective,” its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran maintains that he suffers from tinnitus as a direct result of in-service noise exposure. Specifically, he reports that his tinnitus was caused by grenade and rifle fire without wearing ear protection. See March 2019 Notice of Disagreement. For the reasons below, the Board finds that service connection for tinnitus is warranted. The Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (lay testimony is competent to establish the presence of observable symptomatology). In further support, the Veteran’s Certificate of Release or Discharge from Active Service, DD Form 214, reflects that during his active service his Military Occupational Specialty (MOS) was Infantry Indirect Fire Crewman. The Department of Defense (DOD) MOS Noise Exposure Listing indicates that an officer in the Veteran’s position had a high risk of noise exposure. See DOD MOS Noise Exposure Listing. The Veteran stated that he was exposed to grenade and rifle fire during service. See March 2019 Notice of Disagreement. Based on the above evidence, the provisions of 38 U.S.C. § 1154(a) are applicable in this case, which state, in pertinent part, that in any case of service connection, due consideration must begiven to the places, types, and circumstances of the Veteran’s service as shown by his service record, the official history of each organization in which the Veteran service, his medical records, and all pertinent medical and lay evidence. In describing what he experienced during active service, the Veteran’s statements are factually plausible and consistent with other evidence contained in his claims folder. Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, the Board finds the Veteran’s account of experiencing in-service noise exposure and auditory symptomatology to be credible and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a). The Veteran currently has a diagnosis of tinnitus. See June 2018 VA C&P Examination. Further, the Veteran maintains that his tinnitus has been present since discharge. See March 2019 Notice of Disagreement. As noted above, there is a presumption of service connection for chronic disease such as tinnitus, rebuttable only by clearly attributable intercurrent causes, which manifests during service and then again “at any later date, however remote.” See Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008). In this case, the Veteran currently manifests tinnitus and there is no evidence of record reflecting any intercurrent causes. Thus, pursuant to Groves, the Board finds that the criteria for entitlement to service connection for tinnitus has been met as there is no clear intercurrent cause of tinnitus shown by the record. The Board acknowledges the negative etiological opinion evidence contained in the June 2018 Hearing Loss and Tinnitus Disability Benefits Questionnaire. The medical opinion indicates that there is no evidence of permanent auditory damage on active duty and no nexus to relate current tinnitus to military noise and that the medical records are silent for tinnitus on active duty, along with research not supporting late onset of noise-induced tinnitus. The Board finds the medical opinion is inadequate as the examiner’s opinion was based, in part, upon an absence of contemporaneous documentation of complaints of tinnitus in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). Moreover, the criteria for service connection for tinnitus are met when applying the provisions of 38 U.S.C. § 1154(a), and the chronic disease presumption as interpreted by Groves. Because the evidence is at least in relative equipoise, the benefit of the doubt doctrine is applicable, and service connection for tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 2. Entitlement to service connection for bilateral hearing loss is denied. For VA compensation purposes, hearing loss is defined as a disability when the auditory pure tone threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory pure tone thresholds for at least three (3) of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley, 5 Vet. App. at 159. The June 2018 VA examination reflects pure tone thresholds based on audiometric testing that satisfy the criteria for a bilateral hearing loss disability. See 38 C.F.R. § 3.385. The Veteran’s DD Form 214 reflects that he served as an Infantry Indirect Fire Crewman. The DOD has determined that this MOS involves a high probability of noise exposure. See DOD’s Duty MOS Noise Exposure Listing. The June 2018 examiner also noted that the Veteran was exposed to noise during active service. In September 1972, the Veteran’s audiological examination at induction reports that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 X 5 LEFT 15 15 15 X 25 Although one of the thresholds was outside normal range, the Veteran’s hearing was not of severity to constitute a disability under 38 C.F.R. § 3.385 and a hearing loss disability was not noted upon entrance into service. In October 1974, the Veteran’s audiological examination at separation reports pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 10 LEFT 5 5 10 0 5 These thresholds were all within normal range and do not demonstrate increases of more than 10 decibels in pure tone hearing thresholds since the Veteran began active service. First, the Board will address whether the Veteran’s hearing loss warrants service connection on a presumptive basis for a chronic condition that manifested in-service or manifested to a compensable degree within one year of discharge. Unfortunately, the preponderance of the evidence demonstrates that the Veteran has not had a hearing loss disability since separation from active duty or a disability that began within a year of separation from service. The Board notes that the Veteran was not noted to have abnormal hearing at separation from service. The 2018 examiner noted that the Veteran’s hearing threshold levels obtained at discharge were normal and did not indicate a hearing loss disability at that time. Furthermore, the Veteran was discharged in 1974 and did not have hearing loss recorded with the claims file until 2018, approximately 44 years after separation from service. This provides probative evidence that the Veteran did not have continuous symptoms of a hearing loss disability from within a year of separation from service until his current claim for service connection. As the evidence does not support that the Veteran has had a hearing loss disability during service or since within a year of separation from service, service connection for hearing loss on a presumptive basis is denied. 38 C.F.R. §§ 3.307, 3.309. Even where service connection cannot be presumed, however, service connection may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Unfortunately, the preponderance of the evidence of record also weighs against a finding that the Veteran’s current bilateral hearing loss was caused by his in-service noise exposure. Even though the disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley, 5 Vet. App. at 159. The June 2018 VA medical opinion constitutes probative evidence weighing against a link between the Veteran’s current hearing loss disability and his in-service noise exposure, as the opinion represents the conclusion of a medical professional specializing in hearing conditions, is based on the Veteran’s medical history, and is supported by a clear explanation sufficient for the Board to make an informed decision. The opinion does not contravene the holding in Hensley, as it represents the medical conclusion of an audiologist, rather than the legal conclusion of the Board, which is what the Hensley case concerned. Moreover, the examiner’s opinion is based not only on the normal audiogram at separation, but the examiner’s knowledge of acoustic trauma. The Board has considered the fact that the Veteran’s MOS involved a high probability of noise exposure but finds that this is not sufficient to substantiate the claim and is outweighed by the June 2018 medical opinion. The sole fact that the Veteran had noise exposure is not sufficient to establish service connection, as the DOD MOS Noise Exposure Listing is not specific to the Veteran’s case and does not provide sufficient information to establish a likelihood that his current hearing loss is linked to in-service noise exposure. See Sacks v. West, 11 Vet. App. 314, 317 (1998). The Veteran’s history of noise exposure was considered by the June 2018 examiner, who conceded noise exposure as an in-service event. Nevertheless, the examiner found it less likely than not that the Veteran’s current hearing loss is linked to such exposure because his service audiograms reflected normal hearing and found that the Veteran’s current hearing loss could not be linked to his active service. There is no documentation of hearing loss until 2018, decades after the Veteran’s 1974 separation from service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The VA examiner’s opinion constitutes probative evidence that while the Veteran was exposed in service to noise levels sufficient to cause hearing damage, no such damage occurred as to cause hearing loss, as shown by the service audiometric testing results. The opinion was provided based upon review of the Veteran’s hearing tests during service and since service, review of the claims file, and an interview of the Veteran that reflected consideration of his lay statements. Further, the Veteran has not submitted competent evidence contradicting the June 2018 examiner’s opinion. To the extent that the Veteran has provided an opinion regarding a nexus between his current hearing loss and his period of active service, the Board finds that the Veteran is not competent to provide an opinion of a causal relationship between in-service noise exposure and a current diagnosis of a hearing loss disability. While the Veteran is competent to report his observable symptoms, such as reduced hearing acuity after exposure to grenade and rifle fire and since his separation from service, the Board finds that the etiology of the Veteran’s current hearing loss falls outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of causation. Layno v. Brown, 6 Vet. App. 465, 470-71 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, the Veteran’s opinion that purports to relate his hearing loss disability to active service is of no probative value. Accordingly, the Board finds that the evidence of record weighs against a finding that the Veteran’s bilateral hearing loss was caused by any incident of his period of active service. As the evidence weighs against a finding that the Veteran’s current bilateral loss had its onset during service, manifested to a compensable degree within a year of separation from service, or a causal relationship between the Veteran’s current hearing loss and his in-service noise exposure, the Board concludes that service connection for bilateral hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II is remanded. As a preliminary matter, the Board notes that the Veteran submitted private treatment records, including for a diabetic eye examination noting that the Veteran had diabetes for approximately 5 years. See August 2018 Eye Associates of Central Texas Note. Furthermore, the Veteran was noted to have seen a separate physician regarding his diabetes. See July 2018 VA H&P Note. Therefore, on remand, the Board requests that the Veteran’s private treatment records, along with any updated VA treatment records, be obtained and associated with the claims file. The Veteran asserts that his current diabetes mellitus was caused by exposure to oils and fuels while he was on active duty. This claim has not yet to date been evaluated by VA. Accordingly, the Board finds that an examination to determine the nature and etiology of the Veteran’s diabetes mellitus is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for lumbosacral strain with degenerative arthritis (claimed as lower lumbar condition) is remanded. The Board acknowledges that the Veteran was examined for a back condition in June 2018. However, after the examination was conducted, the Veteran submitted private medical records indicating that the Veteran’s back problems started “too long ago for him to remember.” See November 2010 Weber Chiropractic Records. Although the June 2018 examiner noted that the Veteran was currently seeing a chiropractor and that he was injured in 1973, the examiner did not address his statement that he had been experiencing back problems since his initial in-service injury. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016). Thus, the Board finds that a new examination is warranted as to the nature and etiology of the Veteran’s back condition. 3. Entitlement to service connection for right foot condition is remanded. 4. Entitlement to service connection for left foot condition is remanded. The Veteran has stated that his bilateral foot conditions were caused by wearing heavy work boots while he was stationed in Germany. See March 2019 Notice of Disagreement. The Board additionally acknowledges that within the Veteran’s private treatment records, bilateral pedal edema was noted. See June 2019 Baylor Scott & White Health Records. Furthermore, the RO stated that the Veteran does not have a current diagnosis of either a right foot disorder or a left foot disorder. See August 2018 Rating Decision; January 2020 Statement of the Case. However, the Board recognizes that pain is a disability when pain reaches the level of functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d (Fed. Cir. 2018). Thus, the Board finds that the Veteran is entitled to an examination to determine the nature and etiology of his bilateral foot conditions. McLendon, 20 Vet. App. at 81. The matters are REMANDED for the following action: 1. The RO should request the Veteran to identify any outstanding private treatment records related to his diabetes mellitus. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release. He should also be invited to submit these records himself. All actions to obtain the requested records must be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. After completing the foregoing development, schedule the Veteran for an appropriate examination to determine the nature and etiology of his diabetes mellitus. The entire claims file, including a copy of this remand, must be made available to the examiner. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus manifested during, or is the result of, his active service, including but not limited to, exposure to oil and fuels. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his back condition. The entire claims file, including a copy of this remand, must be made available to the examiner. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back condition manifested during, or is the result of, his active service. In formulating his or her opinion, the examiner is asked to consider all competent and credible lay and medical evidence of record, including but not limited to service treatment records indicating a back injury in 1973, post-service medical records, and lay statements and reports submitted by the Veteran. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. Schedule the Veteran for an appropriate examination to determine the nature and etiology of any bilateral foot conditions currently attributable to the Veteran. The entire claims file, including a copy of this remand, must be made available to the examiner. The examiner is asked to identify any and all bilateral foot conditions currently attributable to the Veteran. For each condition so identified, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral foot condition(s) manifested during, or is/are the result of, his active service. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.