Citation Nr: 21016245 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 18-33 388 DATE: March 22, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his tinnitus was at least as likely as not incurred during his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to November 1991. The current appeal comes before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied entitlement to service connection for bilateral hearing loss, tinnitus, lumbar spine strain with intervertebral disc disease (IVDS), right and left knee conditions, and a left ankle condition. In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Service Connection for Tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury, event, or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Presumptive service connection may be granted for certain chronic diseases, including certain organic diseases of the nervous system (which specifically includes tinnitus), when manifested to a compensable degree within one year from separation from service, even if there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1112, 1113; Fountain v. McDonald, 27 Vet. App. 258, 259 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In the current appeal, the Veteran specifically contended that his tinnitus had its onset during his active service due to exposure to acoustic trauma/hazardous military noise as a result of participating in demolition exercises during a deployment to Southwest Asia. In resolving reasonable doubt on certain elements of the claim in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus have been met. With respect to the current disability requirement, the Veteran’s recurrent tinnitus was noted in an April 2017 VA-contracted examination report. At that time, the Veteran reported that his tinnitus had been present for as long as he could remember. This evidence is sufficient to support a finding that the Veteran has a current tinnitus disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (providing that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when... a layperson is competent to identify the medical condition....”); Charles v. Principi, 16 Vet. App. 370 (2002) (stating that “ringing in the ears is capable of lay observation and, as such, a veteran is competent to testify as to that symptom”). As to the matter of in-service noise exposure, the Veteran’s DD Form 214 documented his military occupational specialty (MOS) as a military policeman, and noted his receipt of multiple rifle and pistol expert badges, which, as the Veteran testified, presumably required extensive firing range training. His service personnel records additionally noted his participation aboard assigned ships in Operation Sharp Edge in Liberia, and in Operation Desert Shield/Desert Storm,. Additionally, the Veteran credibly testified as to participating in demolition exercises and firing large caliber guns from his assigned ship during his deployment to Southwest Asia, and he credibly testified that he first noticed his tinnitus when returning from that deployment. He noted that he did not report his tinnitus symptoms as he believed it was normal to experience such symptoms, as his fellow service members were also experiencing the symptoms. Thus, the evidence supports the Veteran’s reports of exposure to hazardous noise and acoustic trauma/hazardous military noise during service. As for the matter of a nexus between current tinnitus and the Veteran’s service (particularly, his conceded exposure to hazardous noise and acoustic trauma), in the April 2017 VA-contracted examination report, the examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. In providing this opinion, the examiner relied on the assertion that the Veteran’s entrance and separation examinations showed normal hearing without a significant change in thresholds, thus indicating that there was no noise injury during service. The examiner, however, did not address contentions that the Veteran began having tinnitus symptoms during service when returning from deployment to Southwest Asia. Thus, the examiner’s opinion is of limited probative value. See Dalton v. Peake, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the appellant’s reports of symptoms and history). In contrast to the examiner’s findings, as noted, the Veteran has credibly reported that he experienced an onset of tinnitus symptoms during his active service, in particular after a period of exposure to acoustic trauma/hazardous military noise as a result of participating demolition training during a deployment to Southwest Asia. The Board concludes that his lay statements and corroborating evidence in the April 2017 VA-contracted examination report, wherein he reported having tinnitus for as long as he could remember, supports a finding that he experienced an onset of tinnitus, and has experienced a continuity of tinnitus symptomatology since his in-service exposure to acoustic trauma/hazardous military noise. In reaching this finding, the Board notes that the Veteran, as a layperson, is competent to report on the onset and continuity of his tinnitus symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); Charles, supra. Overall, the weight of the evidence supports a finding that the Veteran’s tinnitus began as a result of exposure to acoustic trauma/hazardous military noise during his active service. The Veteran is competent to report the onset of his tinnitus symptoms after such noise exposure during service, and the medical evidence otherwise supports his contentions that he has suffered from tinnitus symptoms for many years. The Board finds there is insufficient reason to question the credibility of the Veteran’s reports regarding the onset and presentation of his symptoms. See Layno, 6 Vet. App. at 470. Thus, resolving reasonable doubt in the Veteran’s favor on certain elements of this claim, the Board finds that he has experienced tinnitus symptoms since service. Accordingly, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection—bilateral hearing loss With respect to the Veteran’s claimed bilateral hearing loss, like his tinnitus, he asserts that he developed bilateral hearing as a result of exposure to acoustic trauma/hazardous military noise. Notably, however, he asserted that he did not notice hearing loss symptoms until approximately 10 to 15 years ago. Results of the April 2017 VA-contracted audiological examination reveal that the Veteran did not presently have hearing loss sufficient be considered a disability for VA purposes. 38 C.F.R. § 3.385. Nonetheless, bilateral hearing impairment was noted. Where hearing impairment was more severe in the left ear, the examiner provided the opinion that left ear hearing loss was not at least as likely as not caused by or a result of an event during the Veteran’s active duty. In providing this opinion, the examiner relied on the assertion that the Veteran’s entrance and separation audiograms showed normal hearing without a significant change in thresholds, thus evincing that the Veteran did not sustain noise injury in service. Despite the absence of hearing loss sufficient to constitute a disability for VA purposes at this VA examination, an August 2017 audiogram (just four months later) shows that the Veteran had sufficient left ear hearing loss to constitute a VA disability. Further, the Veteran testified at his Board hearing that his hearing impairment had increased in severity since the time of the April 2017 VA-contracted examination, and requested that he be afforded a new VA examination. As to the April 2017 examiner’s opinion that the Veteran was shown to have normal hearing at his separation from service and that the evidence did not indicate that the Veteran suffered a noise injury during service, and as the Board has pointed out with respect to the Veteran’s tinnitus claim, the evidence of record clearly supports a finding that he was exposed to acoustic trauma/hazardous military noise during service. Moreover, in support of his claim, the Veteran’s submitted a medical treatise from the National Institutes of Health (NIH) for the proposition that noise-induced hearing loss can take a long time to become noticeable. Given this evidence, and the Veteran’s assertion that his hearing impairment is now more severe, the Board finds that remand of this claim is warranted to afford the Veteran a new VA audiological examination in order to determine the presence of current hearing loss disability and to obtain a new etiology opinion considering all the evidence of record, and specifically considering the possibility of a delayed-onset hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Service connection—lumbar spine, bilateral knee, and left ankle disabilities During his February 2021 Board hearing, the Veteran asserted that his claimed back, knee, and ankle disabilities were all the result of wear and tear from strenuous physical training during service. In particular, he maintained that he was transferred to a field unit which required that he perform strenuous physical training three times per week, with at least one day of every week dedicated to training with boots and full gear. He noted that in spite of physical ailments suffered, he would not report to sick call, as he would later be punished. The Veteran also initially asserted that his lumbar spine disability was the result of his claimed knee disabilities. Review of the Veteran’s service treatment records reveals one occasion where he received clinical treatment at Camp LeJeune Naval Hospital in August 1991 for bilateral suprapatellar abrasions. While the Veteran was afforded a VA-contracted examination of for his claimed lumbar spine disability in April 2017, at which time lumbar spine strain with IVDS was diagnosed, the examiner opined that the claimed lumbar spine disability was less likely than not incurred in, or caused by, a claimed in-service injury, event, or illness. In providing this opinion, the examiner relied on a lack of evidence of treatment for the Veteran’s back during his active service, and did not address lay reports of injury as a result of strenuous physical training during service. Cf. Dalton, 21 Vet. App. 23 (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). With respect to the claimed knee and ankle disabilities specifically, in spite of the Veteran’s reports of sustaining injury to these respective joints as a result of strenuous physical training, evidence of in-service treatment for suprapatellar abrasions, and his credible reports of enduring current knee and ankle symptoms, including pain, he has not been afforded a VA examination to determine the nature and etiology of any current knee or left ankle disabilities. Thus, given the noted deficiencies in the April 2017 VA-contracted examination, and the lack of VA examination for the Veteran’s claimed bilateral knee and left ankle disabilities, the Board finds that remand of these claims is warranted to afford the Veteran new VA examination of his lumbar spine, knees, and left ankles. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, these matters are hereby REMANDED for the following action: 1. Arrange for the Veteran to undergo a new VA audiological examination. The claims file and a copy of this REMAND should be made available to the examiner for review. Any and all indicated studies and tests deemed necessary by the examiner, to include audiometry and speech discrimination testing, should be accomplished. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that the Veteran’s bilateral hearing loss onset during service, or is otherwise medically-related to his service, to include his exposure to acoustic traumas/hazardous military noise during service, as detailed above. In addressing the above, the examiner should specifically address the NIH treatise submitted by the Veteran in support of the proposition that noise-induced hearing loss can take a long time to become noticeable. Along these lines, the examiner is also advised that the absence of evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Thus, the examiner should consider a delayed onset theory of causation of hearing loss. The examiner must also consider and discuss all pertinent medical evidence and lay assertions, to include the Veteran’s assertions as to the nature, onset, and continuity of his hearing loss symptoms. The examiner is further advised that the Veteran is competent to report his hearing loss symptomatology and the onset of hearing impairment. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 2. Arrange for the Veteran to undergo VA examination(s) of his lumbar spine, right and left knees, and left ankle. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify all lumbar spine (to include lumbar strain and IVDS), right and left knee, and left ankle disabilities—including any condition that is manifested by pain and results in functional impairment of earning capacity—currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). (b.) For each such identified disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that such had its onset during service, or is otherwise medically-related to the Veteran’s service, to include the noted suprapatellar abrasions he sustained during service, and the strenuous physical training he endured during service, as per his testimony. (c.) Additionally, if no current lumbar spine disability is at least as likely as not etiologically related to the Veteran’s service on a direct basis, for each such current lumbar spine disability, the examiner should also provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disability was caused, or aggravated (made worse) beyond its natural progression by a current knee disability. In expressing these opinions, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s assertions pertaining to his strenuous physical training during service. The examiner is advised that the Veteran is competent to report his orthopedic symptoms, including pain, and the onset of such symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The absence of documented evidence of symptoms in, or shortly after, service should not serve as the sole basis for a negative opinion for a claimed disability. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to these matters. 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 Michael Wilson, 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.