Citation Nr: 21015675 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-39 234 DATE: March 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a heart disorder is denied. Entitlement to individual unemployability is denied. FINDINGS OF FACT 1. The Veteran’s hearing loss did not originate during service, did not manifest within one year of separation from service, and is not otherwise etiologically related to his active service. 2. The Veteran’s tinnitus did not originate during service, did not manifest within one year of separation from service, and is not otherwise etiologically related to his active service. 3. The Veteran’s heart disorder did not have its onset in service, it did not manifest to a compensable degree within one year of discharge, and it is not shown to be causally or etiologically related to any disease, injury, or incident in service. 4. The Veteran was not service connected for any disabilities at the time of his death nor after. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1963 to December 1966. The Veteran died in June 2016. The Appellant is his widow. The claims file includes VA For, 21P-0847, Request for Substitution of Claimant Upon Death of Claimant, which the Appellant signed and submitted in November 2016. The RO appears to have accepted the Appellant as the substitute claimant. In the February 2019 remand, the Board instructed that a VA opinion be obtained regarding the etiology of the Veteran’s claimed hearing loss and tinnitus and that the examiner address the May 2015 favorable opinion. The August 2020 remand addressed that the February 2020 VA opinion did not address the May 2015 medical opinion and thus there was a lack of compliance with the Board’s remand directives. The Board also instructed VA to obtain a medical opinion regarding the Veteran’s heart disorder and to address the May 2015 favorable opinion in the new opinion. The Board finds that VA complied with the remand instructions and thus the issues are properly before the Board for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was “noted” during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303 (b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker at 1336; 38 C.F.R. § 3.303 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran filed service connection claims for hearing loss and tinnitus, which were denied by an April 2016 rating decision. The Veteran asserted that his hearing loss and tinnitus are due to his active service. The Veteran’s military noise exposure is at issue since the Veteran’s military occupational specialty (MOS) does not coincide with military traumatic noise exposure. In the Veteran’s DD-214 it explained that the Veteran was a disbursing exam specialist relating it to a civilian occupation of payroll clerk. The February 2020 VA examiner explained that the Veteran had a MOS of finance specialist, which had a low probability for hazardous noise exposure. As such, the Board finds that traumatic military noise exposure cannot be conceded. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s STRs show that at his entrance examination and his separation examination he had normal hearing levels bilaterally. Moreover, his STRs contained no complaints, symptoms, treatment, or diagnosis of hearing loss or tinnitus. Post-service treatment records are largely silent regarding any hearing loss or tinnitus problems. The first time there was any indication of hearing loss was in November 2010 through VA treatment where the Veteran complained of hearing loss but not of tinnitus. In a March 2014 VA audiological test, the Veteran complained of hearing loss but did not report complaints of tinnitus. The Veteran submitted a private medical opinion where he was diagnosed with bilateral hearing loss and tinnitus in May 2015. The examiner reported that since the Veteran’s military service he has complained of earaches, vertigo, tinnitus, and hearing loss secondary to high noises during military operations. The examiner opined that the Veteran was 100 percent disabled and that his service-connected disabilities significantly affected his ability to perform in a competitive work environment. The February 2020 VA examiner reported that the Veteran had a MOS of a finance specialist which had a low probability for hazardous noise exposure. The examiner furthered that he reviewed the entire claims folder and that records showed that the Veteran had normal hearing levels bilaterally for enlistment and for separation. The examiner continued that there was no evidence of any audiological treatment, care, or complaints for hearing loss while in active service or soon after release from active duty. The examiner furthered that VA and other medical records are silent as to any audio treatment or care for hearing loss until an examination was completed at a VA medical center in November 2010. The examiner explained that hearing loss was first identified then, which was 44 years after separation from military service. The examiner explained that it is well known that prolonged exposure to high intensity noise such as military type noise may cause damage to auditory structures resulting in hearing loss. He furthered that exposure to military noise can cause permanent damage resulting in irreversible hearing loss. He explained that damage to the auditory system after a single extremely intense acoustic event is immediate after the noise trauma or hearing loss can appear gradually during the noise exposure period. The examiner clarified that medical literature does not support that a delayed onset or retroactive effect is expected to be evidenced as a hearing loss so many years after being exposed to military noise. The examiner also claimed that hearing loss might also be associated to the combined effect of normal aging process due to progressive inner ear dysfunction and exposure to occupational or recreational noise. However, as noted above, the Board does not concede acoustic trauma in service. The examiner opined that it is less likely as not that the Veteran’s hearing loss was related to or due to noise exposure or an event during military service. In the same February 2020 VA opinion, the examiner explained that tinnitus is a subjective symptom that can be associated to noise exposure as well as to other various etiologies such as hearing loss, head trauma, ototoxicity, and others. The examiner repeated that it is well known that prolonged noise exposure to high intensity noise levels like the military type can cause damage to the auditory structures resulting in tinnitus, but the Veteran’s MOS has a low probability of hazardous noise exposure and in the absence of hearing loss induced by military noise exposure or documentation of tinnitus in the Veteran’s STRs or post-service treatment records any tinnitus is less likely as not to be related to acoustic trauma or hazardous noise exposure during military service. The Veteran was afforded another VA opinion in November 2020. The examiner opined that it was less likely than not that the Veteran’s hearing loss and tinnitus incurred in or was caused by the Veteran’s military service. The examiner noted that the Veteran’s MOS of finance specialist had a low probability for hazardous noise exposure and that the entrance and separation audiological examinations showed normal hearing. The examiner noted that there was no other evidence that reported any hearing loss or tinnitus. The examiner reported that the first indication of hearing loss was in November 2010, but that the Veteran hadn’t complained of tinnitus until the May 2015 private medical opinion. The examiner noted that the only hearing loss was measured and reported was 44 years after service. The examiner reiterated that medical literature does not support that a delayed onset or retroactive effect is expected to be evidenced as a hearing loss so many years after being exposed to military noise and thus based on the available evidence, the association between hearing loss and tinnitus and noise exposure or any other event during service cannot be assumed to exist. The examiner further opined that it is highly probable that hearing loss evidence is due to hearing loss expected as a normal aging process, and the exposure to post-service occupational and/or recreational noise. Regarding the Veteran’s bilateral hearing loss, it is not disputed that he has hearing loss for VA purposes. However, it is disputed whether the Veteran experienced military noise exposure and whether the military noise exposure caused the Veteran’s hearing loss. The Veteran’s claims file shows that he had normal audiological examinations during his active service and the first objective evidence of hearing loss is not until a November 2010 VA treatment record. While the Veteran has submitted a private medical opinion stating that his hearing loss and tinnitus are secondary to the noise exposure during his military service, the Board finds this opinion to be unpersuasive. There is no indication that the examiner reviewed the Veteran’s medical records during and post-service. Moreover, the examiner did not provide any rationale as to why the Veteran’s hearing loss and tinnitus are related to his military service. Instead, it appears the examiner based his opinion entirely on the lay statements by the Veteran. There is no medical evidence supporting the opinion that the Veteran’s hearing loss and tinnitus are related to his military service. As such, this medical opinion is given very little probative weight. The Board finds the greatest probative value in the February 2020 and November 2020 VA opinions since the examiner reviewed the claims folder and assessed the Veteran’s hearing loss and tinnitus claim with his full history. Moreover, the examiner provided a complete rationale backed up by medical studies to explain his opinion. Consideration has been given to the Veteran’s assertion that his bilateral hearing loss was due to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of bilateral hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, the record does not indicate, and the Veteran does not assert, specific acoustic trauma in service. That is, although the Board readily acknowledges that the Veteran is competent to report difficulty hearing, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating audiological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value in the determination of the etiology of the Veteran’s bilateral hearing loss. Regarding tinnitus, the Veteran’s STRs are silent for any complaints or diagnoses of tinnitus. The Veteran’s medical records show that he first reported tinnitus in the May 2015 private opinion. The Veteran did not report anything regarding his tinnitus nor did he explain when he began experiencing tinnitus. The February 2020 and November VA examiners noted that the Veteran’s MOS has a low probability of hazardous noise exposure and in the absence of hearing loss induced by military noise exposure or any documentation of tinnitus in the Veteran’s STRs or post-service treatment records any tinnitus is less likely to be related to acoustic trauma from military service. Moreover, as stated above the May 2015 private medical opinion is given little probative weight since the examiner did not provide any rationale behind his opinion nor was there any evidence that he reviewed all of the Veteran’s medical records from service and post-service. The Board acknowledges that the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation, and that lay testimony may provide sufficient support for a claim of service connection. Here, however, the claim fails on the second element of service connection, as the record does not indicate in-service noise exposure. Therefore, after weighing all the evidence, the Board finds great probative value in the February 2020 and November 2020 VA opinions. Accordingly, the criteria for service connection for bilateral hearing loss and tinnitus have not been met, and the claims are denied. 3. Entitlement to service connection for a heart disorder The Veteran claimed that his heart disorder is related to his time in military service. STRs, including his enlistment and separation examinations are silent for any complaints, treatment, or diagnosis of a heart disorder. The examinations throughout his military service document normal heart function and the Veteran consistently denied any heart problems in his various Reports of Medical History. Post-service treatment records are largely silent for any documentation related to a heart disorder. The March 1995 VA examination diagnosed the Veteran with hypertension but reported that the Veteran’s heart was of normal size and shape, the SA rhythm was adequate, and that there were no murmurs. Moreover, an electrocardiogram from April 1995 did not show any heart disorder. In December 2001, a MUGA scan showed objective changes in the heart architecture. The May 2015 private medical opinion reported that the Veteran experiences dizziness, sudden onset of headaches, palpitations, diaphoresis, and chest pain with shortness of breath episodes for which he was in active medial therapy with poor blood pressure, serum cholesterol levels, and symptoms control. The Veteran was diagnosed with hypertensive cardiovascular disease, coronary artery disease, and congestive heart failure. The examiner claimed that the Veteran’s cardiopulmonary disorders are more probable than not secondary to his military service performance. However, the examiner did not provide any rationale. The Veteran was then afforded a VA addendum opinion in November 2020 where the examiner opined that the Veteran’s heard disorder is less likely than not incurred in or caused by military service. The examiner explained that the May 2015 private opinion noted that the Veteran had hypertensive cardiovascular disease, coronary artery disease, and congestive heart failure, but that the examiner failed to provide a rationale. The examiner furthered that the May 2015 examiner did not explain why the Veteran’s heart disorders were related to service despite STRs showing no complaints, diagnosis, or treatment of any heart disorder nor did the examiner reported that he had reviewed the STRs or post-service treatment records. The examiner opined that according to his review of post-service treatment records the Veteran was diagnosed with coronary artery disease and congestive heart failure in May 2005 and with hypertensive cardiovascular disease in May 2015. The examiner also reported that objective changes in the heart architecture were noted for the first time in a MUGA scan from December 2001. The examiner opined that the Veteran’s hypertensive heart disease was most likely from December 2001. The VA examiner also noted that x-rays from March 1995 and an electrocardiogram from April 1995 did not show findings of heart abnormalities to suggest the presence of hypertensive heart disease, or coronary artery disease, which indicated that those conditions in addition to his congestive heart failure had their onset after 1995 and not during military service as stated by the May 2015 examiner. The examiner furthered that STRs do not show any complaints, diagnosis, or treatment of hypertensive cardiovascular disease, coronary artery disease, or congestive heart failure during active service or within a year from his discharge. He furthered that the separation examination in November 1966 described a normal heart and did not diagnose the Veteran with any heart disorders. The examiner explained that the onset of the Veteran’s hypertensive cardiovascular disease, coronary artery disease, and congestive heart failure was more than 30 years after discharge from service making their onset less likely as not due to or related to active duty. After review of the evidence, the Board finds that the preponderance of the evidence is against a finding that a heart disorder is related to a period of active service. The Board has considered the Veteran’s lay assertions that he experienced a heart disorder since military service; however, the Board finds that his lay reports of onset of his disability are inconsistent with the other evidence of record and therefore not credible in this regard. Throughout his military service the Veteran denied any heart problems. Thus, to the extent that the Veteran’s recent reports attempt to establish the onset of symptoms during service, the Board affords these statements no probative value. Therefore, the Board finds that the evidence does not establish the presence of in-service incurrence. Furthermore, there is no probative evidence of record indicating that the Veteran’s heart disorder is related to his active service. The May 2015 private opinion reported that the Veteran was diagnosed with various heart disorders and that they had their onset during military service. However, the examiner did not provide any rationale as to why he believed that the Veteran’s heart disorders were related to his military service. Moreover, there was no indication that the examiner had reviewed the Veteran’s STRs and post-service treatment records to thoroughly provide a medical opinion. Thus, the Board finds that the May 2015 medical opinion has very little probative weight. Additionally, the Veteran asserted that his heart disorder was related to his military service. The Board notes that the Veteran is competent to report the pain he personally experienced. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, to the extent that such assertions purport to establish a disability or the etiology of any such disability, such assertions do not provide persuasive support for the claim, as the Veteran is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the Board affords the Veteran’s assertion that his heart disorder is related to active service no probative weight. Moreover, the November 2020 VA examiner provided an opinion after thoroughly reviewing the Veteran’s STRs and post-service treatment records. Additionally, the examiner provided a thorough explanation as to why he believed that the Veteran’s heart disorder was not etiologically related to his military service. The Board finds this opinion to be persuasive and provides it great probative weight. Moreover, the earliest competent and credible evidence indicating the presence of a heart disorder was in 2001—about 35 years after the Veteran separated from military service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the Board notes that the Veteran’s heart disorder was not diagnosed or manifested to a compensable degree within one year of service discharge and thus, the Veteran does not meet the requirements to establish presumptive service connection. Based on the foregoing, the Board finds that the preponderance of the competent and credible evidence is against a grant of service connection for a heart disorder. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Entitlement to TDIU A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16 (a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. After a review of all the evidence, lay and medical, the Board finds that entitlement to a TDIU is not warranted. The record shows that the Veteran had no service-connected disabilities at the time of his death, and none have been granted since his death. As discussed above, a TDIU must be based on solely service-connected disabilities. As the Veteran had no disabilities for which service connection could be granted, the claim for a TDIU must be denied. J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.