Citation Nr: 21013841 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 10-39 180 DATE: March 10, 2021 ORDER Entitlement to service connection for hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for residuals of a head injury, to include headaches, dizziness and bilateral eye disorder, is denied. FINDINGS OF FACT 1. The Veteran’s hearing loss was as likely as not incurred during service. 2. The Veteran’s tinnitus was as likely as not incurred during service. 3. The most probative evidence reflects that the Veteran’s chronic residuals of head injury, to include headaches, dizziness and bilateral eye disorder, are not related to his military service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for chronic residuals of head injury due to a motor vehicle accident, to include headaches, dizziness and bilateral eye disorder, are not met. 8 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1957 to April 1961. The Veteran testified at video conference hearing on these matters in September 2011. A Transcript of the hearing is of record. The Veteran claims entitlement to service connection for residuals of a traumatic brain injury (TBI), to include headaches, dizziness, and a bilateral eye disorder; hearing loss; tinnitus; a cervical spine injury; a bilateral shoulder injury and a thoracolumbar spine injury suffered as a result of a motor vehicle accident in August 1957. These claims were previously before the Board, most recently in March 2019. As relevant here, the claims for service connection for residuals of a TBI, to include headaches, dizziness, and a bilateral eye disorder; hearing loss and tinnitus were remanded to obtain an adequate VA medical opinion from a neurologist. The record reflects that the Veteran was a VA medical opinion was obtained from a neurologist in October 2019. Accordingly, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The claims for service connection for a cervical spine injury, a bilateral shoulder injury and a thoracolumbar spine injury were granted by the Agency of Original Jurisdiction in an August 2020 rating decision. This represents a full grant of benefits sought with respect to those issues and, accordingly, those claims are no longer before the Board. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. 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; 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). Hearing Loss “[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels 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. The Veteran has a current hearing loss disability based on the results of the VA examinations conducted in August 2009, May 2012 and June 2018 and the private examinations conducted in August 2008, January 2009 and October 2009. The Veteran contends that his hearing loss is a residual of a 1957 motor vehicle accident during active service and, alternatively, that it was caused by his exposure to noise during service. The Board finds that the Veteran was exposed to excessive noise levels in service based on his credible statements and testimony as to his exposure to noise while on active duty. Specifically, the Veteran testified during the September 2011 Board hearing and reported to the August 2009 and June 2018 VA examiners, and the September 2014 independent medical examiner, that he was exposed to jet engine noise while marching on the flight line and was exposed to noise while shooting at the firing range during basic training. The Veteran also reported that he was never provided hearing protection. The Board finds the Veteran’s reports of his in-service noise exposure to be credible and consistent with the circumstances of his service. With respect to the nexus element, there are conflicting opinions in the record as to whether the Veteran’s hearing loss is attributable to his in-service noise exposure. The audiologist who conducted the January 2009 private evaluation concluded that it was as likely as not that the Veteran’s hearing loss was the result of exposure to hazardous noise in service. The physician who conducted the September 2014 independent medical examination concluded that the results of the Veteran’s audiogram were consistent with exposure to loud noise while in the military, causing noise-induced injury to his hearing cells. An October 2009 VA examiner concluded that it was less likely than not that the Veteran’s hearing loss was related to military noise exposure, based on a finding that he did not have any such exposure. The May 2012 VA examiner also offered a negative nexus opinion based on the lack of any evidence that the Veteran had hearing loss at the time of his discharge from service. The June 2018 VA examiner concluded that a nexus between the Veteran’s military service and hearing loss was not established because the Veteran’s military occupational specialty (MOS) had a low probability of noise exposure and the Veteran had normal hearing at separation. The Board finds the opinions of September 2014 private evaluator competent, credible and entitled to probative weight as it offers an adequate rationale for the conclusion that the Veteran’s hearing loss is related to noise exposure in service. Although the opinions of the VA examiners are based, at least in part, on conclusions that the Veteran was not exposed to excessive noise in service, the Board has determined that the Veteran’ reports of noise exposure in service are credible and competent evidence. Moreover, to the extent the opinions of the VA examiners are based on the Veteran’s normal hearing at separation, 38 C.F.R. § 3.385 “does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.” Hensley v Brown, 5 Vet. App. 155, 159 (1993). The Board therefore affords the opinions of the VA examiners less probative weight. The evidence is at least equally balanced as to whether the Veterans’ current hearing loss was caused by acoustic trauma in service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that his hearing loss was caused by in-service acoustic trauma. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for bilateral hearing loss is warranted. Tinnitus The Veteran has a current disability of tinnitus as reflected in the August 2009, October 2009, May 2012 and June 2018 VA examinations and the August 2008, January 2009 and September 2014 private evaluations. As discussed, the record also supports military noise exposure. For VA purposes, tinnitus is a disorder with symptoms that can be identified by lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran is competent to identify the onset of his tinnitus as having occurred during service. The Veteran reported to the August 2009 and June 2018 VA examiners and the August 2008 and January 2009 private audiologists that his tinnitus had its onset in service. The Board finds him to be credible. The Veteran’s testimony is supported by the January 2009 private audiologist, who opined that it was just as likely as not that the Veteran’s tinnitus was a result of his exposure to hazardous noise in service. Moreover, the June 2018 VA examiner concluded that the Veteran’s tinnitus was at least as likely a symptom of the Veteran’s hearing loss, which is service connected as a result of this decision. While the October 2009 VA examiner concluded that the Veteran’s tinnitus was less likely than not related to military noise exposure, that opinion was based on a conclusion that the Veteran did not have any military noise exposure and did not report hearing loss in service. As noted, the Board has found the Veteran’s reports of military noise exposure, as well as his statements that his tinnitus had its onset in service, competent and credible. Also, the lack of contemporaneous medical records does not serve as an “absolute bar” to a service connection claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Weighing the opinion of the VA examiner against the credible and competent statements of the Veteran and the corroborating opinion by the January 2009 private audiologist, the Board finds that it is as likely as not that the evidence supports a finding that the Veteran’s tinnitus had its onset during active duty as a result of his exposure to excessive military noise. Accordingly, service connection for tinnitus is granted. Chronic residuals of head injury due to a motor vehicle accident, to include headaches, dizziness and bilateral eye disorder The Veteran contends that his residuals of a head injury, including headaches, dizziness and a bilateral eye disorder, are related to the 1957 motor vehicle accident. As noted, the claim was remanded in March 2019 for an adequate VA medical opinion from a neurologist. Initially, although the Veteran’s representative argues that the RO did not comply with the March 2019 remand directives, the record reflects that a VA medical opinion from a neurologist was obtained in November 2019. In accord with the directives of the March 2019 Board remand, the examiner addressed the Veteran’s lay statements regarding the accident and commented on the October 2015 brain MRI. The Board thus finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2019 VA examiner provided a thorough review of the Veteran’s statements and the relevant medical records. The examiner acknowledged the Veteran’s statements in August 2009 that he sustained a head injury in the accident with symptoms of a concussion and that he thereafter experienced headaches and vertigo. The VA examiner also noted the statements and records indicating that the Veteran did not lose consciousness after the accident. Medical records reflected that the Veteran was hospitalized for anxiety following the accident and the earliest post-service records noting dizziness were from 2005. At that time, the Veteran reported vertigo but denied headaches or vision problems and denied having similar symptoms prior to the incident. The examiner also noted the Veteran’s statement in August 2008 to a VA audiology examiner that he did not hit his head in the accident and denied losing consciousness or receiving any injury to his head. The November 2019 VA examiner also noted the Veteran’s statements that his dizziness was not disabling while working as a truck driver. The VA examiner also noted that the findings of the October 2015 brain MRI were natural findings of advancing age and diabetes, and were not associated with head trauma. The November 2019 VA neurologist concluded that it was less likely than not that the Veteran suffered a traumatic brain injury as a result of the 1957 motor vehicle accident. According to the examiner, there was no medical basis to conclude that the 1957 accident caused headaches, dizziness or eye problems. The examiner explained that the nature of such injuries is that symptoms are maximal within one week of the injury and that they abate with time. The examiner noted that the Veteran had been hospitalized for a day following the accident and was diagnosed with anxiety at that time. The examiner also noted that the Veteran worked as a professional driver for 50 years and that he would not have been able to perform that position if he had severe headaches, incapacitating dizziness and eye problems. The examiner explained that the Veteran’s headaches, imbalance, dizziness and vision problems were part of the normal anatomic decline of function and subjective symptoms of a diabetic male of the Veteran’s age. The examiner also noted that the Veteran’s distance vision was “excellent” for his age and that the loss of near vision was a normal function of aging. The Board finds the opinion of the November 2019 VA neurologist probative and entitled to great weight. As noted, the examiner provided a thorough review of the Veteran’s statements, reviewed the relevant medical records and offered a supporting rationale for his conclusion that the Veteran’s symptoms of headaches, dizziness and vision problems were not related to the motor vehicle accident. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board acknowledges that the record contains conflicting opinions with respect to whether the Veteran’s residuals of headache, dizziness and eye problems were a result of the 1957 accident. Specifically, independent medical examinations performed by a private physician in April 2009 and September 2014 opined that the Veteran’s symptoms were results of the accident, and evaluations from August 2009, November 3009 and March 2012 concluded that the Veteran had residuals of a head injury incurred during the motor vehicle accident. These opinions are not entitled to significant probative weight, however, as they do not include reviews of the relevant medical records. As noted by the November 2019 VA examiner, the medical records do not support a finding that the Veteran sustained a head injury during the motor vehicle accident or that he was continuously treated for residuals of headaches, vertigo and eye problems since the accident. The Board also acknowledges the Veteran’s statements that his residual symptoms have been continuous since the accident, but notes that the competent medical evidence of record does not support such a conclusion. Specifically, the Veteran’s service treatment records note that the Veteran was treated for anxiety following the accident, but a September 1957 note following the accident noted that a physical examination was negative and that the Veteran had a “rapid recovery” from the accident in the hospital. A June 2018 VA examination for the Veteran’s inner ear noted that the Veteran reported no vertigo for 14 years. A June 2018 VA examination for headaches described the Veteran’s condition as tension headaches. As noted, the Veteran denied headaches or vision problems when treated for vertigo in December 2005 and denied any previous incidents of dizziness. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, while the Veteran is competent to report his observable symptoms, there is no indication that he has the medical training, education or knowledge to be able to opine as to whether his head injury residuals are related to the 1957 motor vehicle accident. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the Veteran’s head injury residuals were not found during service or within a year of separation from service, and the weight of the evidence reflects that they did not manifest until many years after discharge. The competent medical evidence of record does not support a finding that the Veteran’s complaints of headaches, dizziness and vision problems are related to the 1957 motor vehicle accident. Based on the foregoing, the Board finds that the preponderance of evidence does not support service connection for residuals of a head injury related to the 1957 motor vehicle accident, to include headaches, dizziness and vision problems. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.