Citation Nr: 21013749 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-00 890 DATE: March 10, 2021 ORDER 1. Service connection for tinnitus is granted. 2. Entitlement to service connection for bilateral hearing loss is denied. 3. Entitlement to a compensable rating for hepatitis B is denied. FINDINGS OF FACT 1. The Veteran’s tinnitus is reasonably shown to have had onset in service, and to have persisted since. 2. A hearing loss disability in either ear was not manifested during the Veteran’s service; sensorineural hearing loss (SNHL) was not manifested to a compensable degree within a year following his discharge from service; and the hearing loss disability is not shown to be etiologically related to his service 3. Throughout, the Veteran’s hepatitis B has been resolved and asymptomatic. 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 bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. A compensable rating for hepatitis B is not warranted. 38 U.S.C. 1155; 38 C.F.R. 4.114, Diagnostic Code (Code) 7345. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1973 to October 1976. These matters are before the Board of Veterans’ Appeals (Board) on appeal of July 2011 and November 2013 Department of Veterans Affairs (VA) rating decisions. In November 2020, a videoconference 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 SNHL and tinnitus as organic diseases of the nervous system) may be service connected on a presumptive basis if manifested 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). 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). 1. Entitlement to service connection for tinnitus is granted. The Veteran contends that his tinnitus is due to exposure to artillery noise in service. His military occupational specialty (MOS) was field artillery crewman. His service treatment records (STRs) contain no mention of complaints, diagnosis, or treatment pertaining to tinnitus. On June 2011 VA audiological examination, the Veteran reported experiencing tinnitus, that was longstanding, and that he was unable determine the time of onset. The examiner opined that tinnitus is less likely than not related to service and is as likely as not associated with hearing loss, explaining “only seldom does noise cause a permanent tinnitus without also causing hearing loss”. The examiner opined that it is possible that aging, caffeine, and nicotine contributed to the tinnitus, and that the etiology of the tinnitus cannot be determined without resort to mere speculation. At the November 2020 hearing, the Veteran testified that he experienced ringing in his ears since serving in artillery in service, and that it has persisted since. 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 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 is a 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 reported in June 2011 that he could not determine the exact onset date, 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. The Board has no reason to question the credibility of his accounts that his tinnitus became manifest in service and has persisted since. Resolving reasonable doubt in the Veteran’s 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 bilateral hearing loss is denied. The Veteran contends that his hearing loss is due to exposure to noise from artillery noise while in service. STRs contain no mention of complaints, diagnosis, or treatment pertaining to hearing loss. On August 1976 service separation examination, a hearing loss disability was not noted. In a contemporaneous report of medical history, he denied ear trouble, running ears, or hearing loss. Audiometry showed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 15 10 10 XX 10 Left 20 15 10 XX 10 On June 2011 VA audiological examination, the Veteran reported exposure to artillery fire (with and without hearing protection) in service and denied having any noise exposure as a civilian. Audiometry revealed that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 Right 10 15 10 35 65 Left 10 5 5 15 45 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left. SNHL was diagnosed. The examiner opined the hearing loss and tinnitus are less likely than not related to service, noting that based on a review of the file, while a high probability of exposure to noise trauma [in service] is conceded, his hearing was within normal limits at separation with no significant threshold shifts [during service]. The examiner cited to the Institute of Medicine (IOM) study (2005), indicating that hearing loss from noise trauma injuries occurs immediately following exposure. The examiner noted the IOM report indicating that there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after exposure to the noise exposure. The examiner noted it was possible that aging, caffeine, and nicotine contributed to the hearing loss, but that the [specific] etiology could not be determined without resort to mere speculation. In his September 2011 notice of disagreement (NOD), the Veteran alleged that the June 2011 VA examination opinion was inadequate because the examiner stated he could not resolve the issue without resort to mere speculation. He asserted t that his hearing loss is related to his service, citing to Combee v. Brown. At the November 2020 hearing, the Veteran testified that after service, he worked in a steel plant and ran a punch press that punched holes through steel. He testified that he did not notice he had hearing loss until people started telling him so and stated that his hearing loss began in 1992 in one ear and in 1998 in the other. He testified he did not seek treatment for hearing loss until 2010. In a February 2021 statement in support of the claim, a private provider noted the Veteran reported a long-standing history of hearing loss, that he served in the field artillery division in service, and that he used ill-fitting hearing protection devices that did not stay in. The provider opined that the Veteran’s hearing loss was more probable than not a result of his years of service in the field artillery. It is not in dispute that the Veteran was exposed to loud noise in service and has a current bilateral hearing loss disability. What remains necessary to substantiate this claim is competent evidence that the bilateral hearing loss disability is etiologically related to his service. The evidence does not show that a hearing loss disability was manifested in service. The Veteran’s STRs, including his August 1976 separation examination report, are silent for complaints, treatment, findings, or diagnoses pertaining to hearing loss. Likewise, a hearing loss disability is not shown to have been manifested within a year following the Veteran’s separation from service, nor is postservice continuity of sensorineural hearing loss shown. Notably, the Veteran testified he initially reported becoming aware of reduced hearing in the 1990s (over 15 years after service); and a bilateral hearing loss disability was initially diagnosed (based on specified audiometry) in 2011, over 35 years after the Veteran’s separation from service. Accordingly, service connection for hearing loss on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), or based on continuity under 38 C.F.R. § 3.303(b), is not warranted. Whether a current hearing loss disability may, in the absence of evidence of onset in service and continuity thereafter, be otherwise be related to remote service is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. The Veteran is a layperson, and his own opinion in the matter is not competent evidence. The Board notes the July 2011 VA examiner opined that it is possible that aging, caffeine, and nicotine have contributed to the hearing loss and that he cannot determine the specific etiology without resort to mere speculation and that the Veteran alleged the opinion is inadequate because it was offered based on speculation. However, the examiner also cited to the absence of a change of his hearing acuity in service and to treatise evidence, and included adequate rationale to reach the conclusion that Veteran’s bilateral hearing loss is less likely than not related to service, citing to supporting medical literature. [The Board acknowledges the July 2011 VA examiner similarly opined that tinnitus is unrelated to service, but rather is related to bilateral hearing loss and that the Board granted service connection for tinnitus, as discussed above. However, that grant was based based on the chronic disease presumption (evidence of onset in service and continuity thereafter) and did not require a medical opinion to establish a nexus between remote noise exposure and his current disability. Continuity of a hearing loss disability since service is simply not shown. The July 2011 opinion is probative evidence in matter of entitlement to service connection for bilateral hearing loss. While a private provider has related the Veteran’s bilateral hearing loss to his service, the February 2021 opinion is based on an incomplete medical history (it does not acknowledge the Veteran’s postservice exposure to occupational noise (as a punch press operator) , or account for the lengthy postservice interval before the Veteran’s hearing loss was first clinically noted). Therefore, it lacks probative value. The preponderance of the evidence is against a finding that the Veteran’s current bilateral hearing loss is, or may be, etiologically related to his service. Accordingly, the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 56. Increased Rating 3. Entitlement to a compensable rating for hepatitis B is denied. Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. §§ 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during such period. 38 C.F.R. §§ 3.157, 3.400(o)(2). When it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §§ 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. §§ 4.3. 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, 1 Vet. App. at 56. Hepatitis B is rated under Code 7345 (for rating chronic liver disease without cirrhosis, including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, and drug-induced hepatitis, but specifically excluding bile duct disorders and hepatitis C). Under Code 7345 chronic liver disease that is nonsymptomatic is rated 0 percent. A 10 percent rating is assigned when the disease is manifested by intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is assigned for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is assigned for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Note (1) provides that sequelae such as cirrhosis or malignancy of the liver are to be rated under an appropriate Code, but not to use the same signs and symptoms as the basis for the rating under Code 7345. Note (2) provides that, for purposes of rating conditions under Code 7345, an “incapacitating episode” means a period of acute signs and symptoms severe enough to require bedrest and treatment by a physician. 38 C.F.R. § 4.114. The Veteran’s claim for an increased rating was received November 13, 2012. The relevant period for consideration therefore begins one year prior, in November 2011. On June 2011 VA liver examination, the Veteran reported joint pain, concentration difficulties, and reduced appetite. Hepatitis B was diagnosed, and the examiner opined it was resolved, noting current serological testing did not show virological evidence of an active liver infection. On May 2012 VA hepatitis examination, the Veteran reported mild fatigue. Resolved hepatitis B and active hepatitis C were diagnosed. Symptoms attributable to chronic or infectious liver disease were intermittent fatigue and right upper quadrant pain on palpation of the liver. A July 2012 rating decision denied entitlement to service connection for hepatitis C. The Veteran did not appeal the decision, and it became final. 38 U.S.C. § 7105. A November 2012 VA treatment record notes he is a HBV carrier and chronic hepatitis B, no symptoms with hepatomegaly, and chronic hepatitis C were assessed. In a November 2012 statement, the Veteran reported he cannot drink as much beer as before due to his hepatitis B. On October 2013 VA hepatitis examination, the Veteran reported he is taking vitamins for fatigue and he has an enlarged liver. He contends the symptoms are related to his hepatitis B. Symptoms attributable to chronic or infectious liver disease were intermittent fatigue. The examiner opined that his current liver condition is less likely than not related to his hepatitis B and that the symptoms noted were likely due to active hepatitis C and active alcohol use. The examiner acknowledged the Veteran’s contentions that his symptoms are related to hepatitis B, but based on a review of medical literature, opined that the Veteran’s status was most consistent with resolved hepatitis B. Citing to literature by the American Association for the Study of Liver Disease, the examiner opined that the Veteran’s serological testing is consistent with resolved hepatitis B, noting he has a previously known history of acute or chronic hepatitis B infection, his HBsAg is negative, and HBV DNA serum is undetectable. At the November 2020 hearing, the Veteran testified his symptoms of fatigue and lack of concentration are worsening. He testified he did research on Google, which stated that hepatitis B contributes to fatigue, concentration and irritability. He testified he is not being treated for hepatitis B. [At the November 2020 hearing he testified he would submit a doctor’s opinion indicating that his current symptoms are due to hepatitis B; he was granted a 60-day abeyance period for submission of such evidence; no additional evidence has been received.] At no time under consideration is the Veteran’s hepatitis B shown to have been symptomatic. On June 2011, May 2013, and October 2013 VA examinations, examiners it was found that the Veteran’s hepatitis B had resolved. While the record notes findings of fatigue and abdominal pain, those have been attributed to his nonservice-connected active hepatitis C. Notably, the October 2013 VA examiner opined that his current signs and symptoms of a chronic liver disease are likely due to his active hepatitis C and alcohol use, citing to the absence of HBsAg and HBV DNA in serological testing and clinical treatise for support that hepatitis B is not active, and not symptomatic. Whether signs or symptoms attributable to a chronic liver disease are related to hepatitis B or hepatitis C is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. The Veteran is a layperson, and his own opinion is not competent evidence in the matter. He has not submitted any supporting medical opinion to the contrary. The preponderance of the evidence is against the claim for a compensable rating for hepatitis B, and the appeal in the matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55-56. 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.