Citation Nr: 21072636 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-60 302 DATE: December 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. Entitlement to service connection for bilateral neuropathy is denied. REMANDED Entitlement to service connection for a respiratory disability is remanded. FINDINGS OF FACT 1. Affording the Appellant the benefit of the doubt, the Veteran's bilateral hearing loss symptoms began during his active service. 2. Affording the Appellant the benefit of the doubt, the Veteran's bilateral tinnitus symptoms began during his active service. 3. The preponderance of the evidence is against a finding that the Veteran's bilateral neuropathy is causally or etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for bilateral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to March 1966. He died in April 2015. The Appellant is his surviving spouse. See August 2016 Substitution Determination Letter. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant initially requested a hearing before the Board [see September 2016 VA Form 9], but later withdrew her request [see September 2018 representative statement] and asked that a decision on this appeal be made based on the evidence of record. Thus, her hearing request is considered withdraw. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Service Connection Service connection requires evidence of a current disability resulting from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski 1 Vet. App. 49 (1990). Bilateral Hearing Loss Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran's claim for service connection to bilateral hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the current appeal and prior to his death, the Veteran contended that he had bilateral hearing loss related to his military service. He reported being exposed to flight line noise, jet engines, and aircraft ground equipment while serving as an aircraft mechanic. See December 2011 VA Examination. His military occupational specialty was that of an aircraft mechanic. See DD 214. He described bilateral hearing loss since service, and his statements are credible and consistent with his service. The Board has no reason to doubt the credibility of his statements and concludes that there has been continuity of hearing loss symptoms since service. 38 C.F.R. § 3.303(b). Prior to his passing, the Veteran had a current diagnosis of bilateral hearing loss per 38 C.F.R. § 3.385, as shown on his December 2011 VA examination. Sensorineural hearing loss was indicated at 500 Hertz, with 60 decibels in the right ear and 70 decibels in the left ear. In addition, the December 2011 VA examiner opined that it was not at least as likely than not that the Veteran's hearing loss was caused by, or a result of, his service. The examiner noted the Veteran's reports of in-service noise exposure but did not address these reports in providing an opinion. Instead, the examiner relied on the absence of documented hearing loss in service in providing the negative opinion. In this regard, the Board points out that the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The examiner opined that the Veteran's hearing loss may have been induced by his civilian employment, but wholly failed to address whether his hearing loss was due to his conceded acoustic trauma which occurred prior to his civilian employment. Lay evidence, when credible, is competent to establish the presence of continuity of symptomology for a claimed disability during and since separation from active service. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As the evidence of record in the current appeal reflects acoustic trauma in service as well as the Veteran's competent and credible assertions of the onset of hearing loss symptoms in service continuing to the present, the evidence is at least evenly balanced in showing that his current bilateral hearing loss onset during service. Thus, the Board resolves all reasonable doubt in the Veteran's favor. As the evidence is in relative equipoise, the benefit-of-the-doubt rule applies, and entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Tinnitus Tinnitus is a type of disorder associated with symptoms that are uniquely capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). The primary role of the Board in adjudicating a tinnitus claim is to assess the credibility of the Veteran's statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran contended that he had tinnitus as a result of his military service, when he reported he was exposed to flight line noise, jet engines, and aircraft ground equipment while serving as an aircraft mechanic. As noted earlier herein, the Veteran was exposed to acoustic trauma during service, and in-service noise exposure is therefore conceded. He described ringing in his ears for years that had become more noticeable in 1970 and reported a recent worsening at the time of his December 2011 VA examination. The Board finds that the Veteran's statements as to the onset, and continuity, of his tinnitus are credible and that his statements alone are sufficient to establish the criteria for service connection for tinnitus. The Board concedes his exposure to hazardous noise during his active duty as previously noted herein. As such, the in service event element of his claim for service connection for tinnitus is met. In reaching this conclusion, the Board acknowledges that the December 2011 VA examiner provided a negative etiology opinion for the Veteran's tinnitus. Specifically, the examiner opined that it was less likely than not related to the Veteran's military service but did not provide any rationale in support of this opinion. Instead, the examiner suggested that the Veteran's tinnitus may have an association to his reports of anxiety and that it was unlikely his tinnitus was related to his military service. The examiner does not appear to have considered the Veteran's in-service acoustic trauma or contentions in providing an opinion. Tinnitus symptoms are uniquely capable of lay observation. The Veteran's lay statements as to when he experienced the onset of tinnitus symptoms are clearly more probative than the opinion of a medical examiner attempting to determine speculatively what the Veteran would have personally experienced decades ago. The probative evidence supports this claim. Accordingly, service connection for bilateral tinnitus is granted. Bilateral Neuropathy Prior to his passing, the Veteran contended that he had neuropathy of his lower extremities that was related to his military service. He did not contend a specific incident or injury that he believes caused his bilateral lower extremity neuropathy. As an initial matter, the Board notes that the Veteran's treatment records reflect indications of an abnormal bilateral lower extremity nerve condition study as well as frequent reports of pain radiating in the bilateral lower extremities, tingling, and bilateral foot drop. See June 2010 VA Treatment Record as well as June 2012 and October 2013 Private Treatment Records. Although a formal diagnosis is not found in the claims file, it is evident that the Veteran had a bilateral neuropathy disability prior to his death. The question for the Board is whether he had a chronic bilateral lower extremity neuropathy disease that was shown in service or that manifested to a compensable degree within one year of separation therefrom, or whether a continuity of relevant symptoms has existed since service. The Board concludes that, while he had symptoms of a bilateral neuropathy and a disability manifested by radiating pain and tingling, such did not manifest to a compensable degree within a presumptive period, was not noted in service with attributable continuity of symptomatology, and was not shown to be related to his active duty. The first treatment record available that noted symptoms of neuropathy is from 2010, approximately 44 years after his separation from active service. Service connection may still be granted on a direct basis if there is evidence of an event, injury, or disease in service and evidence of a nexus between the claimed in-service disease or injury and the present disability. However, the preponderance of the evidence is against a finding that the Veteran's bilateral lower extremity neuropathy manifested during service or as a result of his military service. STRs do not document any treatment for, or complaints of, neuropathy or related symptoms. His March 1966 separation examination did not note any defects, and he has not reported any injury or incident related to his service. Further, he did not undergo a VA examination related to this issue, nor has a medical opinion been obtained. In this regard, however, no VA medical opinion is needed in this case. The weight of the evidence demonstrates no in-service injury or disease, no chronic symptoms of a neuropathy disability during service, no continuous neuropathy symptoms since service, and no neuropathy disability manifested to a compensable degree within one year of service. While the Veteran, prior to his passing, and the Appellant are competent to describe the Veteran's symptoms, the Board finds that there is no evidence of record to show that the Veteran or the Appellant had the specialized medical education, training, or experience necessary to render a competent medical opinion as to the nature and etiology of his bilateral lower extremity neuropathy. Providing an etiology regarding his disability is medically complex in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent the Veteran asserted, and the Appellant currently maintains, that a relationship exists between his bilateral neuropathy and his service, the Board finds that such contentions do not provide persuasive evidence in support of the claim. The first indication of treatment for a bilateral neuropathy came decades after his separation from service, and he has not related his bilateral neuropathy to an old service injury or otherwise related his pain to his military service while receiving treatment for his bilateral neuropathy. The Veteran has not identified a specific incident, event, or injury from his service or otherwise provided any indication as to how his bilateral lower extremity neuropathy may be associated with his service. Accordingly, there is no probative evidence of record of a nexus between the Veteran's bilateral lower extremity neuropathy and his military service. Coupled with the decades-long gap between military service and the first report of neuropathy related symptoms, the preponderance of the evidence is against a finding that his bilateral lower extremity neuropathy is related to his service. The record does not support the claim for service connection for bilateral lower extremity neuropathy. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, because the preponderance of the evidence is against the claim, it must be denied. REASONS FOR REMAND Service Connection For A Respiratory Disability The Veteran contended that he had a respiratory disability related to his active duty. Prior to his passing, his VA and private treatment records reflected diagnoses of chronic obstructive pulmonary disorder (COPD), asthma, emphysema, chronic bronchitis, and chronic hypoxic respiratory failure. His STRs document frequent respiratory complaints as reflected by treatment for upper respiratory infections in August 1965 and March 1966, as well as reports of chest congestion in December 1965. In seeking treatment for a respiratory disability, the Veteran also reported his belief that he was exposed to asbestos. See January 2011 and May 2011 Private Treatment Records. To date, no VA medical examiner has addressed whether the Veteran's respiratory disorder is related to his military service, despite multiple respiratory complaints documented in his STRs and his contended asbestos exposure. There is no medical opinion of record addressing the etiology of his respiratory disorder. Given the lack of sufficient medical evidence to make a decision on this matter, the Board finds that a VA medical opinion should be obtained to address the etiology of his respiratory disorder. Further, a July 2012 Social Security Administration (SSA) benefits information letter is included in the record which indicates that, prior to his passing, the Veteran was in receipt of SSA benefits. The Veteran's SSA records are not currently part of the claims file. As the SSA records may be relevant to the Veteran's claim, a remand is also required to allow VA to request the SSA records. Accordingly, this matter is REMANDED for the following action: 1. Contact the Social Security Administration and request copies of any decisions, including applications and supporting medical records, regarding the Veteran. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if records are not available. Any negative responses must be documented in the claims file. 2. Then, obtain a medical opinion from an appropriate examiner regarding the etiology of the Veteran's respiratory disorder, variously diagnosed as COPD, asthma, emphysema, chronic bronchitis, and chronic hypoxic respiratory failure. Upon review of the Veteran's claim file and this Remand, the examiner is asked to opine: Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's diagnosed COPD, asthma, emphysema, chronic bronchitis, and chronic hypoxic respiratory failure either began during, or were otherwise caused by, his military service, to include as due to his contended asbestos exposure and the in-service August 1965, December 1965, and March 1966 reports of, and treatment for, respiratory complaints documented in his STRs? The examiner is advised that the now-deceased Veteran was, and the Appellant is, competent to report symptoms/history and that such reports must be acknowledged and considered in formulating an opinion. If any lay reports are discounted, the examiner should provide a reason for doing so. A 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 question. No action is required of the Appellant until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Appellant is also advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.