Citation Nr: 21071295 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-13 379 DATE: November 30, 2021 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for any respiratory condition, to include COPD is remanded. Entitlement to service connection for rheumatic fever is remanded. Entitlement to service connection for an arthritis condition, secondary to rheumatic fever is remanded. Entitlement to service connection for a heart condition, to include as secondary to rheumatic fever is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his tinnitus had its onset during service and has continued since. 2. The Veteran does not have a bilateral hearing loss disability as defined by VA law and regulations. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1979 to July 1983 and from July 1986 to May 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 and a December 2015 rating decisions from a Regional Office (RO) for the Department of Veterans Affairs (VA). The August 2015 rating decision denied service connection for an arthritis condition; a heart condition, also claimed as rheumatic fever; and COPD, also claimed as a respiratory condition. The December 2015 rating decision denied service connection for hearing loss and tinnitus. In the Veteran's March 2016 substantive appeal (VA Form 9), a Board videoconference hearing was requested. A hearing was scheduled for February 20, 2019 which was postponed due to inclement weather. Subsequent hearings were scheduled for April 9, 2019 and April 6, 2020. The notification for these hearings were returned by the U.S. postal office as undeliverable. On July 8, 2021, the Veteran was scheduled for a hearing on September 28, 2021. However, the Veteran did not show up to his scheduled hearing and he failed to provide a "good cause" explanation indicating why he missed the hearing. For the purpose of clarity in development and adjudication the Board has further re-characterized the Veteran's claims as indicated on the title page of this document. Service Connection Service connection is warranted where the evidence of record demonstrates that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty during active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may be found to be service connected where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection for a disability requires competent and credible evidence of the following: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 252 (1999). In addition, the presumption of service connection set forth in 38 C.F.R. § 3.303(b) attaches to certain diseases enumerated in 38 C.F.R. § 3.309(a), including hearing loss and tinnitus. See Walker v. Shinseki, 708 F.3d 1331, 1338-1339 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Where a veteran has served for at least ninety days during a period of war or after December 31, 1946, and develops an enumerated chronic disease, including sensorineural hearing loss, to a compensable degree within one year from the date of separation from service, such disease shall be presumed to have been incurred or aggravated in service even though there is no evidence of such disease during the period of service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology may also be demonstrated to establish service connection for diseases recognized as chronic for VA purposes. See Walker, 708 F.3d at 1338-1339. The determination of whether a veteran has a hearing loss disability is governed by 38 C.F.R. § 3.385, which provides that, for the purposes of applying the laws administered by VA, impaired hearing will be considered a disability only where one of the following is established: (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The threshold for normal hearing ranges between zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. See Hensley, 5 Vet. App. at 157. A veteran may establish direct service connection for a hearing disability that initially manifests several years after separation if the evidence of record demonstrates a causal relationship between the veteran's current hearing disability and the injury or disease suffered in service. See id. at 164; see also 38 C.F.R. § 3.303(d). Where an approximate balance of positive and negative evidence exists regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the Veteran's claim in order for it to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). The Veteran contends that he has bilateral hearing loss and tinnitus disabilities that were caused by his in-service exposure to acoustic trauma. 1. Entitlement to service connection for tinnitus. The Veteran contends that he is entitled to service connection for tinnitus as the result of acoustic trauma suffered in service. The Veteran stated that his service duties resulted in his close proximity to loud noises while in service. In an October 2015 statement the Veteran stated "I notice a background ringing sensation that is pretty much constant. I served on Destroyers and Frigates in the Navy. I had to chip paint with a needle gun, and I was present when they fired the 5 inch gun and fired missiles." See October 2015 VA 21-4138 Statement in Support of Claim. Service personnel records show the Veteran's duties as communications watch supervisor were alignment/operation of all communications circuits/equipment, antenna maintenance and repair, including frequent cleanings. Affording the Veteran the benefit of the doubt, the Board concludes that he has a current diagnosis of tinnitus that resulted from acoustic noise exposure during active duty service. 38U.S.C. §§1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); 38C.F.R. §3.303 (a). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds the Veteran credible regarding his claim that he experiences symptoms of tinnitus. See Charles, 16 Vet. App. at 370. The Board also finds that in-service noise exposure caused the Veteran's tinnitus. The April 2016 VA opinion is not dispositive because that examiner did not rely on the Veteran's statements that he experiences tinnitus as a result of his active-duty service. The April 2016 examiner acknowledged the Veteran's reports of constant, bilateral tinnitus which he first noticed many years ago. However, the negative April 2016 VA opinion did not consider the Veteran's statements as to whether the in-service noise exposure was directly related to his tinnitus. Although the Board has considered the April 2016 VA examination and opinion, it is not found to be probative with regard to tinnitus as it is not based on a complete consideration of the relevant evidence. See Walker, Id. Service connection for the recognized chronic disease can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker, Id. Thus, recognizing that continuity of symptomatology requires the chronic disease to have manifested in service, the Board finds the Veteran's statements as to tinnitus since service to be credible. Accordingly, any doubt regarding the onset of the Veteran's current tinnitus must be resolved in the Veteran's favor. Following a review of the medical and lay evidence of record, the Board finds the competent and credible statements of the Veteran as to ongoing tinnitus since service to be of probative value. Therefore, the Board notes the probative evidence of record and finds that the Veteran's current tinnitus began in service. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that evidence of noise exposure, current tinnitus, and continuity of symptoms since service, support a grant of entitlement to service connection for tinnitus. See Walker v. Shinseki, Id.; see also 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Entitlement to service connection for bilateral hearing loss. In this case, the evidence demonstrates no disability under 38 C.F.R. § 3.385. The Veteran underwent a VA audiology examination in April 2016. The audiology report does not indicate an auditory threshold of 40 decibels in a frequency between 500 and 4000 Hz, does not indicate auditory thresholds of at least 26 decibels in at least three of the frequencies between 500 and 4000 Hz, and do not indicate speech recognition less than 94 percent. In fact, the April 2016 VA examiner noted all thresholds in the relevant frequencies to be below 40 decibels and noted 100 percent speech recognition in the right ear and 96 percent in the left ear. Further, none of the other medical evidence of record notes findings that would satisfy the criteria noted under 38 C.F.R. § 3.385. The Board does not ignore that the Veteran was exposed to acoustic trauma while serving, as he described in his statements of record. In the absence of a disability, however, compensation may not be awarded. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, a service connection finding for a bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In assessing whether the Veteran has current left ear hearing loss, the Board has considered his lay assertions. His statements have evidentiary value inasmuch as he is competent to report what he senses, such as diminished hearing acuity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, on the issue of diagnosis, whether he has a hearing loss disability under VA guidelines, the lay evidence is not persuasive vis a vis the medical evidence in the claims file. The issue of whether the Veteran has bilateral hearing loss disability for VA purposes concerns internal pathology beyond a lay witness' capacity to sense. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the lay evidence is of little probative value in light of the medical evidence before the Board, which consists of a VA audiology examination report and private treatment records which indicate an absence of bilateral hearing loss disability throughout the appeal period. The Veteran's lay assertions are not medically significant, therefore, on this particular issue. As such, the medical evidence preponderates against the Veteran's lay assertions here. See Alemany and Gilbert, supra. As the preponderance of the evidence is against the claim to service connection for bilateral hearing loss disability, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.10. REASONS FOR REMAND 3. Entitlement to service connection for a respiratory condition, to include COPD is remanded. The Veteran contends that he has a respiratory condition related to service. The Veteran has not yet undergone a VA examination for the claimed respiratory condition. The claims file contains competent evidence of the claimed disability and the Veteran's potentially relevant symptoms. A review of the Veteran's service treatment records show the Veteran had several instances of upper respiratory infections. The entrance examination notes ear, nose or throat trouble. Additionally, there are several instances where the Veteran complaint of allergies, rhinitis, and sore throat during service. Further, the Veteran submitted private medical records showing a diagnosis of COPD. Thus, the Board finds that a VA examination is warranted such that the etiology of the claimed condition may be assessed. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 4. Entitlement to service connection for rheumatic fever is remanded. 5. Entitlement to service connection for an arthritis condition, secondary to rheumatic fever is remanded. 6. Entitlement to service connection for a heart condition, to include as secondary to rheumatic fever is remanded. The Veteran seeks service connection for rheumatic fever and arthritis and a heart disorder, which he asserts are both secondary to the rheumatic fever. The Veteran has stated that he contracted rheumatic fever during service. The Veteran's service treatment records shows that the Veteran was hospitalized with a diagnosis of rheumatic symptoms in July 1982. Private treatment records reflect multiple current diagnoses, including coronary artery disease, COPD, and arthritis. To date, the Veteran has not been afforded a comprehensive VA medical examination to determine what rheumatic fever residuals, if any, are present. Similarly, the Veteran has not been afforded a comprehensive VA medical examination to determine the nature and etiology of his claimed arthritis and heart condition. Although the Veteran has submitted private medical records noting diagnoses of a heart condition and arthritis related to rheumatic fever, they do not provide an opinion as to the exact nature and etiology of these disabilities. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all medical care providers, at non-VA facilities, inpatient and outpatient, who may possess additional pertinent records. After obtaining any necessary authorization or medical releases, the AOJ should request and associate with the claims file legible copies of the Veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the Veteran's response, the AOJ should secure all outstanding VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory condition, including COPD. The examiner is asked to identify all pertinent respiratory diagnoses. For each diagnosed condition, the examiner is asked to answer: Whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed respiratory condition had its onset in, or is otherwise related to, the Veteran's active service. 3. Schedule the Veteran for an appropriate VA examination identify whether the Veteran has had residuals of rheumatic fever during the pendency of this claim and to determine what rheumatic fever residuals, if any, are or were present during that time. 4. Schedule the Veteran for an appropriate VA examination by an appropriate clinician to determine the nature and etiology of heart condition. The examiner is asked to identify all pertinent current diagnoses. For each diagnosed heart condition, the examiner is asked to answer: a. Whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed heart condition had its onset in, or is otherwise related to, the Veteran's active service. b. Whether it is at least as likely as not (i.e., at least a 50 percent probability) that any diagnosed heart is caused by or aggravated by (permanently worsened beyond natural progression) the Veteran's rheumatic fever. 5. Schedule the Veteran for an appropriate VA examination by an appropriate clinician to determine the nature and etiology of arthritis condition. a. Whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed arthritis had its onset in, or is otherwise related to, the Veteran's active service. b. Whether it is at least as likely as not (i.e., at least a 50 percent probability) that such disability is caused by or aggravated by (permanently worsened beyond natural progression) the Veteran's rheumatic fever. In addition to any records that are generated because of this remand, the examiners' attentions are drawn to the following: July 1982 STR noting clinical impression of "acute rheumatic fever" and electrocardiographic record indicating "S1 and S2 were normal in intensity with a faint grade I-II/VI systolic ejection murmur at the apex which radiated to the lower left sternal border." July 1982 STR Narrative Summary detailing the Veteran's hospitalization from July 8, 1982 to July 12, 1982. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran's documented medical history and assertions. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's lay statements. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.