Citation Nr: 21005785 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-48 874 DATE: February 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for a stomach disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that bilateral hearing loss currently exists. 2. The preponderance of the evidence is against a finding that tinnitus manifested during the Veteran’s period of active service or within a year of separation from service, or that it is otherwise the result of a disease or injury during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to October 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) dated November 2015. In July 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. Regarding the Veteran’s claim of entitlement to service connection for a stomach disorder, the Board notes that the issue on appeal was characterized by the agency of original jurisdiction (AOJ) as entitlement to service connection for H pylori, ulcers. However, the Veteran has been diagnosed with gastroesophageal reflux disease (GERD) and stomach cramps in the past; therefore, the Board has recharacterized the issue more broadly to include any stomach disorder reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Service Connection The Veteran is seeking service connection for bilateral hearing loss and tinnitus that he contends is due to his military service. Specifically, he contends that his bilateral hearing loss and tinnitus, are a result of exposure to rifle fire in basic training and ill-fitting hearing protection as well as exposure to cannon fire while at advanced individual training (AIT) at Fort Polk. See July 2019 Board Videoconference, December 2015 Notice of Disagreement (NOD). Applicable Laws and Regulations In general, in order to prevail on the issue of service connection the evidence must show: (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 during service. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Additionally, certain chronic diseases may be presumed related to service, absent an intercurrent cause, if: they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. § 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be demonstrated if a claimant can show (1) a condition "noted" during service; (2) post service evidence of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Sensorineural hearing loss is a condition that is considered chronic, and therefore, will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10 percent disabling) within one year after discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015) (specifying that sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system subject to § 3.309(a)). This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Factual Background The Veteran’s entrance and separation examinations found his hearing did not meet the threshold of compensation for VA disability purposes. Specifically, the Veteran’s September 1972, enlistment examination found right ear hearing loss of 30 decibels at 500 hertz and 35 decibels at 4000 hertz. Of note would be the Veteran’s July 1974, separation audiometric examination that showed improvement in the Veteran’s hearing; specifically, reflecting a 15 decibel loss at 500 and 4000 hertz. See August 2015 Service Treatment Record (STR), at p. 2, 6. At a VA primary care initial evaluation in December 2004, the Veteran’s hearing was noted as “good.” See August 2015 Houston VA Medical Records, at p. 7. In October 2015, the Veteran presented to a VA Hearing Loss and Tinnitus Disabilities Examination, as to his right ear he was only diagnosed with sensorineural hearing loss at the 6000 hz and not at the 500 - 4000 hz. As to his left ear, the Veteran was diagnosed with normal hearing. See October 2015 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The examiner also opined that the Veteran’s tinnitus is at least as likely a symptom associated with his hearing loss. The examiner also noted that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. Specifically, noting the Veteran’s separation examination did not show hearing loss, there was nothing in the STR that showed he suffered hearing loss while on active duty, and the Veteran first suffered symptoms 30 years after separation. Id. at p. 5. In September 2016, the Veteran attended an audiological assessment, where he reported worsening symptoms of hearing loss and constant tinnitus. Specifically, he reported he cannot hear well watching TV. The examiner tested the Veteran’s hearing and opined “[n]ormal hearing to borderline mild hearing loss from 250-8000 hz bilaterally, good word recognition bilaterally.” The examiner also noted the Veteran’s hearing is “essentially stable and consistent” when compared to the October 2015 Hearing and Tinnitus DBQ. See September 2016 Houston VA Medical Records. Analysis 1. Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is related to noise exposure in service. Given such, the question for the Board is whether the Veteran has a current disability that began during service. Regarding the first element of service connection, the Board concludes that the Veteran does not have a current diagnosis of hearing loss for VA purposes, and has not met the hearing loss threshold for VA at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran underwent a VA hearing examination in October 2015. See October 2015 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The results of the examination show that the pure tone thresholds for the Veteran’s ears are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 15 25 LEFT 20 20 20 15 25 On the Maryland CNC word list speech discrimination test, the Veteran measured 94 percent for the right ear and 96 for the left ear. See id. These results do not show any hearing loss disability that is recognized by VA law. See 38 C.F.R. § 3.385. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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 findings reported at the October 2015 VA examination, do not reflect the presence of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. As there is no other audiometric testing during the appeal period that reveals otherwise, there is no competent evidence that demonstrates bilateral hearing loss for VA purposes, and the claim is denied on this basis alone. Id.; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). To the extent the Veteran asserts that he has bilateral hearing loss disability, his opinion is not competent, where the Veteran does not have the medical expertise to provide such an opinion, especially where VA has specifically determined audiometric findings that represent hearing loss for VA purposes. In reaching its 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, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 49, 55 (1990). 2. Tinnitus The Board finds that the Veteran has a current diagnosis of tinnitus. See October 2015 Hearing Loss and Tinnitus DBQ. Thus, the first element of service connection is met. However, the second element of service connection, the in-service incurrence, has not been satisfied as the Veteran’s service treatment records are silent for any diagnoses of, complaints of, or treatment for tinnitus. As noted in the October 2015 Hearing Loss and Tinnitus DBQ, the Veteran reported that his tinnitus began 10 years earlier. However, assuming arguendo that the second element of service connection was satisfied, where there is evidence that the Veteran had exposure to loud noises while in service, which the October 2015 VA examiner does consider in his opinion, the third element of service connection is not satisfied. Specifically, the VA examiner determined that the Veteran’s tinnitus is a symptom of the Veteran’s hearing loss and less likely as not related to service. The examiner explained that: Tinnitus is a symptom of hearing loss caused by cochlear damage. The hearing test at separation showed [the Veteran] did not suffer hearing loss while on active duty, which also implies he did not have cochlear damage. [The Veteran] reported first noticing the ear noises about 10 years ago, or 30 years after military service. Based on the timing of tinnitus onset and lack of cochlear damage during military service, I think military noise exposure did not cause tinnitus for this [V]eteran. Id. at page 5. The only evidence in support of the claim for the Veteran’s disability are the Veteran’s own statements that he “feels” that it is related to service. See December 2015 Notice of Disagreement (NOD). The Board has also considered the Veteran’s testimony offered during the Board videoconference hearing in July 2019. While the Veteran believes that the diagnosed disorder is related to his military experience, he is not competent to provide a nexus opinion as the issue of causation in this case requires knowledge and interpretation of complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Notably, tinnitus is of the type of evidence that the Veteran can state that The Board concludes that, while the Veteran meets the first and second prongs of service connection, the requirements of a current diagnosis, and an in-service incurrence the Veteran does not satisfy the third prong, which is establishing that the diagnosed tinnitus is related to an in-service injury, event, or disease. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d); see October 2015 Hearing Loss and Tinnitus DBQ. The Board has also assessed whether service connection can be established presumptively, but where there is no evidence that this disability was noted in service, and where the Veteran has informed the 2015 VA examiner that his symptoms did not begin until 10 years older, there is no chronic disease within one year of service and no continuity of symptomatology. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Accordingly, the claim is denied. REASONS FOR REMAND 1. Stomach Disorder The Veteran is seeking service connection for a stomach disorder, claimed as H pylori, ulcers, that he contends are due to his military service. The Veteran has a current diagnosis of H pylori, ulcers and GERD. See November 2018 Houston VA Medical Records. The Veteran was also treated in February 1974, for a stomach disorder when in-service. See August 2015 STR, at p. 3. The Bord finds the Veteran’s lay statement along with the statements provided by his wife and sister as credible. Thus, a reasonable probability of nexus exists between the Veteran’s in-service stomach disorder and current diagnosis of H pylori, ulcers and GERD. However, to date, he has not been provided a VA examination to determine whether his currently diagnosed disability, to include pain results in impairment in earning capacity, that may be attributed to his military service. Therefore, on remand, the Veteran should be scheduled for a VA examination to determine whether a stomach disorder is related to his active service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. If not already associated with the record, obtain and associate with the claims file any additional VA or private treatment records pertaining to the claim dating from October 2015 to the present. Any records obtained should be associated with the claims file. If no such records are available, this should be indicated in the claims file. 2. The Agency of Original Jurisdiction (AOJ) must obtain an addendum opinion by a VA examiner, or other similarly situated medical professional, regarding the Veteran’s service connection claim for a stomach disorder. An in-person examination is not necessary unless the examiner determines that one must be conducted to address the questions below. The examiner is asked to specifically address the following: (a). Identify any and all currently diagnosed stomach disorders, and respond to the following: 1. Whether it is at least as likely as not that any diagnosed stomach disorder is due to the Veteran’s military service, to include as a result of the Veteran’s February 1974 in-service stomach disorder and his post-service stomach disorder. a. The examiner MUST comment on the Veteran’s lay statements as to the cause of his in-service injuries and continuity of symptomatology since separation. b. If the VA examiner finds that the Veteran’s symptoms constitute stomach pain alone without an underlying diagnosis, the VA examiner is asked to determine if the Veteran’s symptoms of pain reach the level of functional impairment of earning capacity. • The examiner must specifically address as it pertains to answering a – b: i. Are the Veteran’s assertions consistent with medical knowledge or implausible? ii. Are the Veteran’s report about symptoms align with how the disease or disability is known to develop? iii. Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). • The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. • If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. • A complete rationale for all opinions offered must be provided. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, 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.