Citation Nr: 21063944 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-03 575 DATE: October 18, 2021 ORDER 1. Entitlement to service connection for tinnitus is granted. 2. Entitlement to service connection for right ear hearing loss is denied. REMANDED 3. Entitlement to service connection for a low back disability is remanded. 4. Entitlement to service connection for a bilateral knee disability is remanded. 5. Entitlement to service connection for a bilateral foot disability is remanded. 6. Entitlement to service connection for a left eye disability is remanded. 7. Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus is reasonably shown to have had onset in service and to have persisted since. 2. A right ear hearing loss disability was noted on induction and is not shown to have increased in severity during (or as a result of) the Veteran's active-duty service. CONCLUSIONS OF LAW 1. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. Service connection for right ear hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1973 to January 1976. These matters are before the Board of Veterans' Appeals (Board) on appeal of a May 2015 Department of Veterans Affairs (VA) rating decision. In June 2021, a virtual hearing was held before the undersigned; a transcript is in the record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases (to include sensorineural hearing loss (SNHL) and tinnitus as organic diseases of the nervous system) may be presumed to be service connected if manifested as chronic in service or to a compensable degree within a specified period following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. §§ 1110, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). When a claimed disability is not noted upon entry into service, the Veteran is presumed to have been in sound condition with respect to such disability on entry in service. Such presumption is rebuttable only by clear and unmistakable evidence that (1) the condition preexisted service and (2) if rebutted, that it was not aggravated by such service (did not increase in severity during service, or that any increase in severity during service was due to natural progression). 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.306. For VA compensation purposes, hearing impairment is considered 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. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran's service treatment records (STRs) (except for a January 1973 service entrance examination report and a corresponding report of medical history) are unavailable. VA conducted an exhaustive search for outstanding STRs and service personnel records (SPRs) and has determined they are unavailable. See January 2015 memo regarding "Formal Finding of Unavailability" (documenting VA's efforts to locate the Veteran's remaining STRs and concluding they are unavailable, and that all efforts were exhausted with further attempt deemed futile). Following the 2014 formal finding of unavailability, VA received duplicate copies of the STRs and SPRs already associated with the record. The Board acknowledges that therefore, VA has a heightened duty to assist in these matters. 1. Service connection for tinnitus is granted. The Veteran contends that his tinnitus is due to exposure to generator noise in service. His military occupational specialty (MOS) included laundry and bath specialist. The available STRs contain no mention of complaints, diagnosis, or treatment pertaining to tinnitus. A June 15, 2015 VA treatment record notes the Veteran requested a hearing evaluation due to "2+ year" history of chronic tinnitus in both ears, with the right worse than the left. A June 25, 2015 VA treatment record notes he has experienced ringing in the ears "for over 2 years now." The report of a June 25, 2015 VA hearing evaluation notes the Veteran reported he experiences tinnitus only in the right ear and that it began in service, but he never complained about it. At the June 2021 hearing, the Veteran testified that he experienced ringing in his ears since serving around loud generators in service, and that it has persisted since. He testified that his duties in service exposed him to generator noise and his tent was positioned a few feet from running generators used to run laundry machinery. It is not in dispute that the Veteran has tinnitus. He reports that he has experienced ringing in the ears. Tinnitus is a disability that is diagnosed based on self-reports (by the person experiencing it) and is generally incapable of objective confirmation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). It is also not in dispute that he was exposed to considerable noise during service, as suggested by his MOS. As tinnitus is a disease listed in 38 C.F.R. § 3.309(a) (as an organic disease of the nervous system), service connection may be established by showing continuity of symptomology. See 38 C.F.R. § 3.303 (b). What the Board must decide considering the foregoing is the question of the credibility of the Veteran's accounts that his tinnitus began in service, and has persisted since. The Veteran has reported that his tinnitus began in service and that symptoms have continued since. While he did not report an exact onset date when he scheduled his initial hearing evaluation in 2015 with VA, there is nothing in the record (such as a denial of tinnitus during the intervening period since service) that directly contradicts his reports of continuity, so as to render them not credible. While he reported in 2015 that he had a 2+ year history of ringing in the ears, he also reported that year that his right ear tinnitus began in service. His explanation that he initially did not seek treatment for tinnitus, but sought treatment after became more annoying is plausible, and is not directly contradicted by clinically recorded data. Therefore, Board finds no reason to question the credibility of his accounts that his tinnitus became manifest in service and has persisted since. Resolving reasonable doubt in his favor (as mandated, see 38 C.F.R. § 3.102), the Board finds that onset of tinnitus in service with continuity since is shown. Service connection for tinnitus is warranted. 2. Entitlement to service connection for right ear hearing loss is denied. On January 1973 service entrance, a right ear hearing defect was noted. Audiometry showed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 35 25 15 XX 20 Low frequency hearing loss in the right ear was noted. On August 25, 2015 VA hearing evaluation (for complaints of tinnitus) it was noted that valid puretone testing results could not be obtained, as the Veteran gave inconsistent responses, even with multiple instructions. He was advised to return for another hearing test by a different audiologist. A September 2015 VA treatment record notes a second hearing evaluation found a diagnosis of asymmetric hearing loss, specifically, mild to moderate SNHL in the right ear. At the June 2021 hearing, the Veteran testified he was exposed to noise from laundry generators and that his hearing loss was first diagnosed in the mid-2000s. He was granted a 60-day abeyance period for submission of supporting medical evidence; no additional medical evidence has been received. When a veteran's STRs are unavailable, there is a heightened obligation to explain findings and conclusions and to carefully consider the benefit of the doubt doctrine under 38 U.S.C. § 5107 (b). see also Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006). As was earlier noted, the Veteran's STRs (except for his service entrance examination report and the corresponding report of medical history) are unavailable. However, missing STRs do not obviate the need for there still to be competent and credible evidence supporting a claim for service connection showing existence of the claimed disability and relating it to military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993). It is not in dispute that the Veteran was exposed to loud noise in service and a VA provider found he has mild to moderate right ear SNHL. What remains necessary to substantiate this claim is that the disability is etiologically related to his service. The Veteran's January 1973 service entrance examination noted a low frequency hearing loss in the right ear. Thus, a right ear hearing loss was noted on enlistment, and he is not entitled to a presumption of soundness on entry in service with respect to a right ear hearing loss. See 38 U.S.C. § 1111. Therefore, regarding right ear hearing loss, the analysis turns to whether the pre-existing right ear hearing loss was aggravated by service. Aggravation is established by showing an increase in disability during service. Aggravation may not be considered where there was no increase in severity of a disability during service. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Consequently, the critical question in this matter is whether the pre-existing right ear hearing loss is shown to have increased in severity beyond natural progression during, or as a result of, service. Whether pre-existing disability increased in severity beyond natural progression of the disease during service (here not documented because the record does not include STRs beyond the service entrance examination report) is a medical question. It requires medical expertise, applying medical principles to the information provided by diagnostic studies (audiometry). See Jandreau, 492 F.3d at 1377. The Board has considered the Veteran's assertions that his current right ear hearing loss is related to noise exposure in service. The first documented report of right ear hearing loss, after service was in 2015, well after his active-duty service. He testified that hearing loss was not documented until decades after service. As an increase in right ear hearing loss pathology and/or impairment is not shown, aggravation of the pre-existing right ear hearing loss during, or as result of, his active-duty service may not be conceded. The Veteran has not presented any competent (medical, as that is a medical question absent objective evidence of worsening during service) evidence supporting that that his right ear hearing loss disability was aggravated by service. He was given 60 days following the Board hearing to do so but nothing has been received. The Board has considered whether development for a medical advisory opinion in this matter is necessary, and found it is not. Considering the contemporaneous evidence showing no evidence of worsening for a number of years after service, a consulting provider would have no factual basis for finding otherwise. Therefore, an examination to secure a medical advisory opinion in this matter was not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006)). Aggravation of the Veteran's right ear hearing loss by service simply is not shown The preponderance of the evidence is against the claim for service connection for right ear hearing loss. Accordingly, the appeal in the matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 3. 4. 5. 6. Entitlement to service connection for a low back, bilateral knee, bilateral foot, and left eye disabilities. The Veteran alleges that his low back, bilateral knee, and bilateral foot conditions are related to his laundry duties in service, to include having to lift 50-75 pounds; kneel, bend, and twist while setting up tends; and move heavy generators. It appears that the Veteran has received private treatment for his orthopedic and left eye conditions. See notations in December 2011 and December 2015 VA treatment records. While some records from Kaiser Permanente were received in 2010, a review of the record found that the Agency of Original Jurisdiction (AOJ) has not sought updated treatment records from reported providers or asked the Veteran to provide an updated VA Form 21-4142 authorizing VA to secure such records. Such records, if existing, are likely to contain pertinent information, and any such VA records are constructively of record; consequently, the treatment records must be sought. A December 2015 VA treatment record notes that diagnostic studies of the spine found degenerative joint disease (DJD). At the June 2021 hearing, the Veteran testified he experienced low back and knee pain while lifting heavy objects in service. He has not been afforded a VA examination to determine the nature and etiology of his claimed back and knee conditions. Under the circumstances presented, considering VA's heightened duty to assist, the low threshold standard (for determining when an examination or medical opinion is necessary) is met. Development for an examination to ascertain the nature and etiology of any back and knee disabilities is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 7. Entitlement to service connection for left ear hearing loss. The Veteran contends that his left ear hearing loss is related to exposure to excessive noise in service. January 1973 service entrance audiometry found normal hearing in the left ear ; no left ear defect was then noted. Consequently, he is entitled to a presumption of soundness on service entry with respect to left ear hearing loss. A September 2015 VA treatment record notes the Veteran's left ear hearing acuity was normal except for a mild loss at 8,000 Hz. In October 2015, he submitted a hearing evaluation report in chart form (not converted to numerical values), which is inadequate for rating purposes. At the June 2021 hearing, he testified that he currently has hearing loss. As the Veteran is competent to observe a worsening of his hearing acuity, last underwent a hearing evaluation 6 years ago, and has not been afforded a VA medical examination in connection with the instant claim, a contemporaneous examination to determine whether he now has a left ear hearing loss disability (and if so its etiology) is necessary. The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment he has received for the disabilities remaining on appeal (and to complete and submit a VA Form 21-4142 authorizing VA to secure for the record complete clinical records of all private providers of such evaluations and treatment), specifically including Kaiser Permanente records of evaluations and treatment he received for his back, knee, feet, and left eye disabilities. Secure for the record complete (all outstanding) clinical records of the evaluations and treatment from all providers identified. If any private records identified are not received pursuant to VA's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. Secure for the record updated (to the present, all outstanding) complete clinical records of VA evaluations and treatment the Veteran has received for the disabilities remaining on appeal. 2. After the development sought above is completed, arrange for an orthopedic examination of the Veteran to confirm the existence, and ascertain the likely etiology of the claimed back and left and right knee disabilities. The examiner must review the Veteran's claims file. On review of the record and examination of the Veteran, the examiner should: (a.) Identify (by diagnosis) each back and knee disability entity found/shown by the record. (b.) Identify the likely etiology for each back and knee foot disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it began in (or is otherwise related to) the Veteran's military service (and the demands of his duties therein)? (c.) If a diagnosed back and/or knee disability is determined to be unrelated to service, identify the etiology that is considered to be more likely, and explain why that is so. All opinions must include rationale. 3. Arrange for an audiological examination of the Veteran (with audiometric studies) to confirm he has a left ear hearing loss disability (as defined in 38 C.F.R. § 3.385), and if so, ascertain its likely etiology. The Veteran's record must be reviewed. The examiner should provide opinions that respond to the following: (a.) Does the Veteran have a left ear hearing loss disability (as defined in 38 C.F.R. § 3.385)? (b.) If a left ear hearing loss disability is shown, identify the likely etiology of such disability. Specifically, is it at least as likely as not (a 50% or greater probability) that it is etiologically related to his service (and exposure to noise therein)? (c.) If a current left ear hearing loss disability is determined to be unrelated to service, identify the etiology considered more likely (based on the record), and explain why that is so. Include complete rationale with all opinions. 4. Arrange for any further development indicated in the matters of service connection for disabilities of both feet and the left eye condition (e.g., a VA examination if treatment records received pursuant to the development sought above show or suggest one is necessary/show a disability and that it might (that being a low threshold requirement) be related to service. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, Associate Counsel 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.