Citation Nr: 21065196 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 12-10 113 DATE: October 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. REMANDED Entitlement to service connection for lower back pain is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right knee disability, to include damaged right knee ligaments, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is reasonably related to acoustic trauma during service. 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus is reasonably related to acoustic trauma during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to April 1983 and from April 1983 to March 1989. His decorations and awards include meritorious unit commendation, Navy expeditionary medal, Battle E award, and the sea service deployment ribbon (4 awards). These matters come before the Board of Veterans' Appeals (Board) on appeal of a April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing before the undersigned in July 2021. A transcript of that hearing is associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. That decision requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993). Service connection may be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include organic diseases of the central nervous system (e.g., sensorineural hearing loss), are presumed related to service if noted as chronic in service; if manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for bilateral tinnitus The Veteran asserts that his hearing loss and tinnitus is due to intense noise exposure associated with military service as a Machinist Mate where his primary responsibility involved working and standing watch in the engine room. He further noted that he was frequently exposed to loud machinery noise, sometimes 18 hours per day while underway with no hearing protection provided. The Veteran stated that each day is a challenge with his ears constantly making a high pitched whining or even a steady tone like what he heard during the hearing test. Additionally, he stated that he has to hold his head in his hands and crack his neck to try to get rid of the noise. The Veteran contends his hearing loss and tinnitus are due to hazardous noise exposure in the military as he had none in his post service work. The Veteran also requested to be reevaluated as the examiner who conducted his examination was very unprofessional and told the Veteran that the ringing in his ears was caused from drinking too much coffee while the Veteran does not drink coffee. See VA Form 21-4138 Statement in Support of Claim Received December 2010. The Veteran re-iterated the fact that his hearing loss was caused by and confirmed by ENT doctors to be due to his time serving on board Navy Ships working in the Engine room. The Veteran again noted that his job was a Machinist Mate where he worked in 600 and 1200 PSI plants and stood watch for 18 hours per day and worked in these conditions for ten years. The Veteran explained that when standing watch in the engine room, he was in contact with high pitch winding from reduction gears, turbines, motors, pneumatic tools, PA Systems, bells, whistles, steam, leaks, etc. The Veteran additionally stated that the hearing loss which is stemmed from his time in service was confirmed by his doctors to have also caused his tinnitus. The Veteran further stated that after service he noticed that his hearing was worse and he had issues hearing his wife when she would talk to him. The Veteran noted that his hearing continues to worsen and it is to the point where his doctor has advised him to wear hearing aids. See Also VA Form 21-4138 Statement in Support of Claim Received December 2020. The results of a June 2021 VA audiological examination confirm that he has current diagnoses of bilateral hearing loss for VA purposes and of tinnitus. See 38 C.F.R. § 3.385. During the July 2021 Board hearing, the Veteran testified that while serving in the Navy he was in the engine room around very noisy equipment. He also stated that the tinnitus began in the early- to mid-1980s, but he did not seek treatment right away because he really did not know what it was. See Hearing Transcript Received July 2021. The Veteran provided a statement indicating that he stood watch working in the engine room 16-18 hours a day while in service and came in contact with very loud steam leaks, whistles, winding of reduction gears, speaker systems, turbines, jet blast and helicopter noise during flight ops and un reps. He stated that he remembers his tinnitus starting back in 1980, but did not know what it was. He stated that he did not seek medical help because he did not want to stop a mission to see what it was and since he was young, he just continued going. He noted that over the years the tinnitus has gotten worse and effects his entire head, ears, balance, vision, and vertigo. See Lay Statement Received June 2021. Regarding exposure to hazardous noise, the record indicates that the Veteran participated in a military occupational specialty that has a high probability for hazardous noise exposure. Specifically, his DD Form 214 and other service records confirm that he served in the Navy and held the military occupation specialty (MOS) of Machinist's Mate. The Veteran's military personnel records indicate that the duties of this MOS include operating, repairing, and performing maintenance on ship propulsion machinery, auxiliary equipment outside machinery (including steering engine, windlasses, hoisting machinery, and elevators). Additionally, responsibilities include removing and replacing filters in hydraulic systems, drain and filling hydraulic systems, calibrating pressure and temperature sensing devices, carrying out chemical water treatment procedures, performing maintenance on whistles, sirens, anchor windlasses, cranes, winches, steering engines, operating and performing mechanical maintenance on propulsion system equipment including jacking gears, main engines, and steam turbine generators, among other duties. See Military Personnel Record Received June 2009. A service treatment record dated November 1987 indicates that the Veteran was exposed to noise while in service. See STR Medical Received September 2009. Another in-service record states that the Veteran's job title was machinist and his duties involved hazardous exposure to noise. Id. As such, exposure to hazardous military noise is conceded. His service treatment records (STRs) are silent concerning any hearing loss or tinnitus symptoms or diagnoses. A January 2010 C& P VA examination report noted that the Veteran had an occupational history in the military of exposure to engine room noise, steam turbines, generators, steam leaks, drains, boilers, ships whistle, and jets on the aircraft carrier. The audiometric measurements during that time did not reflect that the Veteran had hearing loss for VA purposes. The 2010 VA audiological examination report recorded puretone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) as follows: 5, 10, 5, 25, and 20 on the right, and 5, 10, 5, 30, and 35 on the left. Using the Maryland CNC Test, there was a 96 percent speech recognition score for each of the Veteran's right and left ear. The examiner provided a negative etiological opinion and stated that hearing loss and tinnitus is not caused by or a result of seven years of noise exposure in engine room spaces, high pitch sound of steam drains, high pressure generator turbines and other ship-board noises. As rationale, the examiner stated that the Veteran's hearing was found to be within normal limits from the time of enlistment to the time of separation and hearing was found to be within normal limits in 1992 and 1994 after active duty service. The examiner further stated that a significant threshold shift did not occur during active duty service. The Veteran was examined again by VA in June 2021 during which the examiner determined the Veteran meets the requirements of 38 C.F.R. § 3.385 for hearing loss in the left and right ear. The results of the June 2021 VA audiological examination report recorded pure tone thresholds for the Veteran's right and left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) as follows: 10, 15, 15, 50, and 45 on the right, and 15, 10, 20, 55, and 60 on the left. Speech recognition scores using the Maryland CNC Test for the right ear was 92 percent and the left ear was 92 percent. In the medical history, the examiner noted that the Veteran did not have any noise exposure prior to military service as he was a student at that time and further noted that the Veteran did not have noise exposure after military service. When asked whether the Veteran's currently diagnosed hearing loss condition is at least as likely as not proximately due to or the result of the Veteran's Meniere's disease, the examiner stated that the hearing loss is related to the noise exposure in military service. Moreover, when asked whether the Veteran's tinnitus was at least as likely as not proximately due to or the result of the Veteran's Meniere's disease the examiner stated that the hearing loss and tinnitus are related to noise exposure in military service. As rationale, the examiner stated that the sound of the Veteran's tinnitus is high pitch and the sound of tinnitus in patients with Meniere's disease is low pitch. Additionally, it was noted that the Veteran was exposed to noise while in the miliary through his work in engine rooms where hazardous noise attacked his ears. The examiner further noted that although the precise date of onset of tinnitus could not be ascertained, the Veteran reported recurrent tinnitus and the onset was date 1980. It was also noted that tinnitus was constant and sounded like a turbine and has gotten progressively worse. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its entirety. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether statements and testimony by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As an initial matter, the Board notes that hearing loss and tinnitus manifest the types of symptoms that are readily amenable to lay observation as they are subjective to the claimant. The Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The VA examination reports and correspondence of record note the Veteran's continued reports detailing his hearing loss and tinnitus symptoms as well as his contention that he was exposed to hazardous noise in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. Thus, his statements are credible and probative. In resolving reasonable doubt in the Veteran's favor, a grant of service connection for bilateral hearing loss and tinnitus is warranted. The evidence shows a current diagnosis of bilateral hearing loss, which the Veteran has reported stemmed from service. The Board is persuaded that given the documented facts by the June 2021 examiner that state that the Veteran was not exposed to any hazardous noise prior to and subsequent to his active duty service, it is more likely than not that his hearing loss is associated with service. Moreover, the Veteran competently testified that his tinnitus onset in service. While the Board cannot ignore or disregard the January 2010 VA audiologist's medical conclusions, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the January 2010 VA examiner's opinion is problematic because it does not give due consideration to the Veteran's competent account of the onset of symptoms in service and relies primarily on the fact that the Veteran did not have hearing loss at the time of the 2010 examination. It also relied on the lack of a significant threshold shift in the Veteran's hearing upon leaving service, which is not a bar to service connection. Additionally, given that the Veteran now has a diagnosis of bilateral hearing loss, the January 2010 opinion does not provide an assessment or offer any insight regarding possible delayed onset of hearing loss that may be associated with the documented in-service hazardous noise exposure. As such, the Board finds that the January 2010 VA examination does not have much probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Indeed, the lack of any evidence showing that the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss, to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Where there is no evidence of the Veteran's hearing disability until many years after separation from service, "if evidence should sufficiently demonstrate a medical relationship between the appellant's in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Therefore, the January 2010 VA examiner's opinion cannot serve as the basis of a denial. The Board places significant probative weight on the June 2021 DBQ opinion which states that the Veteran's bilateral hearing loss and tinnitus disabilities are related to exposure to hazardous noise during military service. The Board notes that although the examiner did not offer much rationale, the evidence of record (including the Veteran's testimony and lay statements, his military personnel and service treatment records) demonstrates that the Veteran's current hearing loss and tinnitus disabilities are related to noise exposure in service. The Veteran's testimony and assertions are credible, competent, and significant, in light of his documented exposure to hazardous noise during active duty. Accordingly, with resolution of reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss and tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for lower back pain is remanded. 2. Entitlement to service connection for a right hip disability is remanded. 3. Entitlement to service connection for a right knee disability, to include damaged right knee ligaments, is remanded. The Veteran asserts that an injury that he experienced in service has caused his lower back pain disability, right hip disability, and right knee ligaments disability. Specifically, the Veteran states that in 1980 he fell while standing shaft alley watch on board the USS Midway CV 41 when stationed at the Yokosuka Base in Japan. The Veteran explained that he fell from the escape trunk onto the hard deck plate made of steel. The Veteran stated that after the fall he went to the medical unit and they gave him an ice pack and pain killers and sent him back to duty. He also stated that after years passed his knee got progressively worse to the point that he needed an operation. The Veteran also stated that as the years have gone by, he developed a varicose vein in his right leg and the most severe was inside of his right knee. The Veteran asserts that during his operation screening, he asked his doctor what could have caused this injury to his knee and was told that it could be either an injury or prolonged standing, or family history. The Veteran indicated, however, that he does not have a family history of the condition. The Veteran also stated that after further discussion it was concluded that his fall, years of walking on a bad knee and prolonged standing while on watch in service played a major factor in this condition which causes constant pain and periods of his knee giving out. See VA Form 21-4138 Statement in Support of Claim Received December 2020. During the July 2021 Board hearing, the Veteran testified that he was assigned to the USS Midway in the coast of Japan and during an incident in service injured his lower back, right knee, and right hip. The Veteran testified that one day in November or December of the early 1980s while standing shaft alley watch, he took a terrible fall from the escape trunk onto a steel deck plate and as a result, he severely injured his right knee, lower back, and right hip. He testified that when he fell he landed on his right side. Furthermore, he explained that the fall occurred as he was coming down a ladder made of steel and he fell between the scuttle and the hatch while carrying five gallons of oil. The Veteran testified that he notified someone in the unit about the fall and told them that he was injured and went to sick call and was given an ice pack and aspirin and was told that nothing was broken. He also indicated that he was ordered by a commissioned officer to get back to work and was not allowed to get the proper care and treatment for his injuries. The Veteran testified that since the fall he has had lingering back pain, right hip pain, and right knee pain and further stated that he had to have surgery on his right knee in the 1990s. The Veteran also testified that he had nine years of rigorous labor that included lifting heavy objects, bending, and twisting to fit in confined spaces in order to work on machinery and he also indicated that on the deck of the engine room it was oily and wet which caused him and other shipmates to slip and fall regularly. The Veteran believes that the regular slip and fall further aggravated his claimed injuries. Although the Veteran asserts that he went to Medical for the pain he experienced and was given an ice pack and pain killers, he stated that the injury went undocumented. See Hearing Transcript Received July 2021. The Veteran's service treatment records are silent for any complaints, treatment, or symptoms related to lower back pain, right hip, or right knee ligament injuries during service and are silent for references to the fall that the Veteran described. The record contains correspondence indicating that the Veteran's records from the Naval Hospital in Jokosucka, Japan were not available. See VA Form 21-0820 Report of General Information Received March 2010. The Veteran's post-service treatment records confirm that he has a current condition related to back issues, a right hip condition, as well as a disability related to right knee ligaments. A post service treatment record dated January 2002 states that the Veteran experienced mild edema of the right knee. See Medical Treatment Records Received January 2011. A July 2002 treatment record indicates that a pre op was completed for the right knee orthoscopy in July 2002 and the Veteran was diagnosed with anterior right knee pain and a meniscus tear. See Medical Treatment Records Received January 2011. An August 2018 treatment note for mental health evaluation indicated that the Veteran had numerous symptoms due to his disabilities, including a hunched back. A May 2006 treatment record indicates that the Veteran had issues with the right anterior hip. See Medical Treatment Record Received December 2020. KT, the Veteran's shipmate and roommate during active service, submitted a statement on behalf of the Veteran and indicated that he remembers when the Veteran injured his knee while in the shaft alley escape trunk. He stated that he remembered helping the Veteran in and out of a van when they returned to their home base and remembered the Veteran complaining about his knee when they met in Japan between 1996 and 1997. See Buddy Statement Received January 2011. Another lay statement was submitted by KT who served with the Veteran on board the USS Midway CV41 from 1979 to 1981. KT stated that he and the Veteran served on board the same ship and worked on the same 600 PSI steam equipment and became engine room Machinist Mates. KT stated that while in service, the Veteran fell from the shaft alley escape trunk and the fall caused the Veteran to damage his right knee, back, and right hip. KT stated that he remembered when the Veteran fell and also stated that the Veteran complained of pain in his knee, right hip, and back during service and now 40 years later. KT stated that he recalled the Veteran seeking medical attention and being given an x-ray and pain medicine, but because of the work conditions and harsh leadership the Veteran was not given bed rest after the fall. See Buddy/Lay Statement Received June 2021. The Board finds that further development of the record is necessary to meet VA's duty to assist the Appellant in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the above claims at this time because the record does not include an examination or opinion that addresses the back, right hip, and right knee disabilities in the context of the in-service fall detailed by the Veteran and asserted as the cause of his injuries. The requirements to secure a VA examination are a low bar, and the evidence triggers VA's duty to assist. Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the claimant suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). As such, the McClendon requirements are satisfied, and a VA medical opinion is required. See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's lower back, right hip, and right knee ligaments disabilities. The electronic claims file must be made accessible to the examiner for review in connection with the examination. The examiner should provide an opinion as to the following: (a.) Identify any lower back, right hip, and right knee condition by either (1) diagnosis or (2) functional impairment. (b.) Whether it is at least as likely as not (a 50 percent or greater probability) that any back disability began in service, was caused by service, or is otherwise related to service? (c.) Whether it is at least as likely as not (a 50 percent or greater probability) that any right hip disability began in service, was caused by service, or is otherwise related to service? (d.) Whether it is at least as likely as not (a 50 percent or greater probability) that any right knee disability began in service, was caused by service, or is otherwise related to service? In doing so, the examiner must address Veteran's July 2021 Board hearing testimony that he fell regularly in service, to include a fall in the early 1980s from the escape trunk onto a steel deck plate while standing shaft alley watch and coming down a steel ladder and carrying five gallons of oil. The Board has assessed the Veteran's credibility during the hearing and the examiner must accepts as fact that the fall from the ladder occur as described by the Veteran. In responding to the above, the examiner is requested to address the following: (e.) What types of symptoms to the back, right hip and right knee would have been caused by the in-service fall? (f.) Is there any medical reason to accept or reject the proposition that the injuries sustained in the in-service fall could have led to the current back, right hip and right knee disabilities? In providing the above opinions, the examiner is reminded that the Veteran is competent to report continuous symptoms since service, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports regarding current or past symptoms, the examiner must provide a reason for doing so. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.