Citation Nr: A21005253 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 210107-128634 DATE: March 9, 2021 ISSUES 1. Entitlement to service connection for eustachian tube dysfunction, claimed as vertigo. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. ORDER The appeal on the issue of entitlement to service connection for eustachian tube dysfunction, claimed as vertigo, is dismissed. REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The November 2019 rating decision granted service connection for eustachian tube dysfunction, claimed as vertigo, representing a full grant of the benefit sought. CONCLUSION OF LAW There remains for appellate consideration no case or controversy with respect to the claim for service connection for eustachian tube dysfunction, claimed as vertigo, over which the Board may exercise jurisdiction. 38 U.S.C. §§ 511, 5107, 7104 (2012); 38 C.F.R. §§ 3.155, 3.151, 19.2, 19.4, 19.5, 20.101, 20.104, 20.202, 20.203 (2018); AB v. Brown, 6 Vet. App. 35, 38 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1961 to September 1968. This matter is before the Board of Veterans Appeals (Board) on appeal from a November 2019 Appeals Modernization Act (AMA) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision considered the evidence of record on that date. The Veteran continued to submit additional evidence and argument, and the claims remained continuously on appeal. Months later, an April 2020 rating decision confirmed and continued the denials of service connection for bilateral hearing loss and tinnitus. The Veteran timely appealed to the Board by requesting the AMA Direct Review docket for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ). In the most recent April 2020 AMA decision, the Agency of Original Jurisdiction (AOJ) made favorable findings. The Board is bound by these favorable findings, as discussed below. See 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104(c)). The Board observes that additional evidence was added to the claims file during a period of time when new evidence was not allowed. For example, there are pages of lay history submitted in January 2021. The Board may not consider this evidence. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.300 ). The Veteran may file a Supplemental Claim and submit or identify this evidence. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.2501). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). On January 7, 2021, the Veteran was sent a letter from VA detailing the workings of the Appeals Modernization Act (AMA) and avenues for appeal. Later, in January 2021, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). By way of this document and its provisions, this case is now before the Board. The Veteran elected “Direct Review” review by the Board. The Board may only review those issues properly on appeal and the related evidence from before the Veteran elected higher level review. The Veteran declined a Board hearing. As a threshold issue, the January 2021 VA Form 10182 lists four issues, with the addition of “Meniere’s disease/ dizziness” and “Recent Ear Problem.” The section for the rating decision for “Recent Ear Problem” is ‘“New.’” This was not part of any previous rating decision, is not listed in the Informal Hearing Presentation (IHP), and was never certified to the Board in VA’s Caseflow system. This is not an issue on appeal. To the extent that the Veteran desires to file a claim for any new or recent ear disability, he is advised that a complete claim on an application form prescribed by VA regulations is required. 38 C.F.R. § 3.155. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Entitlement to service connection for eustachian tube dysfunction, claimed as vertigo The Board incorporates its discussion from the sections above by reference. The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to Veterans or the dependents or survivors of Veterans. 38 U.S.C. § 511 (a); 38 C.F.R. § 20.104. The modernized review system refers to the current statutory framework for claims and appeals processing, set forth in Public Law 115-55, and any amendments thereto, applicable on the effective date. The modernized review system applies to all claims, requests for reopening of finally adjudicated claims, and requests for revision based on clear and unmistakable error for which VA issues notice of an initial decision on or after the effective date, or as otherwise provided in paragraph (d) of this section. 38 C.F.R. § 19.2. (a) General. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. (38 U.S.C. § 5101(a)). A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. 38 C.F.R. § 3.151(a). (c) Issues within a claim. (1) To the extent that a complete claim application encompasses a request for more than one determination of entitlement, each specific entitlement will be adjudicated and is considered a separate issue for purposes of the review options prescribed in § 3.2500. A single decision by an agency of original jurisdiction may adjudicate multiple issues in this respect, whether expressly claimed or determined by VA to be reasonably within the scope of the application as prescribed in § 3.155(d)(2). VA will issue a decision that addresses each such identified issue within a claim. Upon receipt of notice of a decision, a claimant may elect any of the applicable review options prescribed in § 3.2500 for each issue adjudicated. (2) With respect to service-connected disability compensation, an issue for purposes of paragraph (c)(1) of this section is defined as entitlement to compensation for a particular disability. For example, if a decision adjudicates service-connected disability compensation for both a knee condition and an ankle condition, compensation for each condition is a separate entitlement or issue for which a different review option may be elected. However, different review options may not be selected for specific components of the knee disability claim, such as ancillary benefits, whether a knee injury occurred in service, or whether a current knee condition resulted from a service-connected injury or condition. 38 C.F.R. § 3.151(c). A Notice of Disagreement must be properly completed on a form prescribed by the Secretary. If the agency of original jurisdiction decision addressed several issues, the Notice of Disagreement must identify the specific decision and issue or issues therein with which the claimant disagrees. The term issue means an adjudication of a specific entitlement as described in 38 C.F.R. § 3.151(c). The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to identify the specific decision and issue or issues therein with which the claimant disagrees. A review of the relevant procedural history with respect to these issues is instructive. 38 C.F.R. § 20.202. Except as provided in § 20.402 for simultaneously contested claims, a claimant, or his or her representative, must file a properly completed Notice of Disagreement with a decision by the agency of original jurisdiction within one year from the date that the agency mails the notice of the decision. The date of mailing the letter of notification of the decision will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.203. One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 19.4. The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue. 38 C.F.R. § 20.101 (d). All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation. 38 C.F.R. § 7104 (a). The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department. 38 C.F.R. § 7104 (c). By way of background, the November 2019 rating decision in part granted service connection for eustachian tube dysfunction (claimed as vertigo) with an evaluation of 0 percent effective February 20, 2019. As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, that specific service connection claim no longer remains in controversy because the benefit sought has been awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Later, the April 2020 rating decision confirmed and continued the denial of service connection only for bilateral hearing loss disability and tinnitus. Neither rating decision contains any other issues. Next, the January 7, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) does not list the service connection for eustachian tube dysfunction, claimed as vertigo issue. Significantly, the service connection for vertigo issue, listed as a grant, was still certified to the Board by way of VA’s Caseflow management system. The February 2021 Informal Hearing Presentation (IHP) lists a third issue of service connection for Meniere’s disease/dizziness, though not directly addressed in the discussion. Here, these errors frustrate appellate review of this incorrectly certified eustachian tube issue because it has already been granted. VA should not have accepted this issue for Board review via VA’s AMA Caseflow software, which tracks claims from their inception to their final disposition. The full benefit was granted in the November 2019 rating decision and there is no evidence of an appeal related to this issue. There is no doubt to resolve. Therefore, the appeal on the issue of service connection for eustachian tube dysfunction, claimed as vertigo, is dismissed. Turning to the VA Form 10182 and IHP’s reference to Meniere’s disease, given these facts, the Board finds that the Veteran has not filed an original claim with respect to this issue. It is not included, as claimed, in the April 2020 rating decision. The Veteran only extrapolated this, in error. The issue was not certified to the Board via VA’s Caseflow issue tracking software. Consequently, there is not a case or controversy pending before the Board with respect to this issue as contemplated by 38 U.S.C. §§ 7104, 7105, and 38 C.F.R. §§ 3.151, 19.4, 20.202, 20.203, over which the Board may exercise jurisdiction. The AMA may not be used to confer jurisdiction over the issues to the Board. The issue was never properly filed and adjudicated at the RO level. Should the Veteran wish to file a claim for service connection for Meniere’s disease or a disability manifested by dizziness, he may still do so pursuant to 38 C.F.R. § 3.155 and 38 C.F.R. § 19.2. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board regrets any possible delay, in light of the Veteran’s contentions, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Board incorporates its discussion from the sections above by reference. To establish service connection a Veteran must generally 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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), Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For sensorineural hearing loss, as organic disease of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The determination of whether a Veteran has a hearing loss disability is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired 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. By way of background, the Veteran’s DD-214 shows his Military Occupational Specialty (MOS) as an Administrative Supervisor in the United States Air Force. Decades later, VA treatment records include a September 20, 2013 VA audiology consultation. It reads in part, “Pt is new to clinic. Reported hx decreased hearing, AS>AD for over 20 years. Hx noise exposure to jet engines. Hx intermittent tinnitus and vertigo since 1962. Pt stated he was seen for comprehensive balance testing, but etiology of vertigo was never determined. Pt denied hx otalgia, otorrhea, and/or outsurgery (sic). Remaining medical hx was unremarkable.” There were impressions of sensorineural hearing loss. Next, received on February 23, 2019, is a VA 21-4138 Statement in Support of Claim containing a lay history of noise exposure in service. The Veteran describes ringing of the ears, vertigo, and hearing loss from while he was serving in the Air Force. He was not given hearing protection. He was riding around and riding in C130 and C124 aircraft. He spent many hours in these aircraft going from the United States to Japan, the Philippines from Japan, to Thailand from the Philippines, and back from Thailand to Japan. He took additional trips. He ran a snack shop on the flight line of Craig Air Force Base, where he was exposed to T37s. They were called a 6,000 pound dog whistle, complete with a shrill sound. This was without hearing protection. He reports ringing in the ears that continues to this day. Next, a November 2019 VA examination with medical opinion related to the issue of service connection for vertigo is of record. The medical opinion begins in part, “11/2/2019: Cass W. Conaway MD, C&P Examiner, Phoenix VAMC. I reviewed the VA electronic medical records. At history, the Veteran was very credible and lay competent. The STRs documented a 1965 active duty episode where the Veteran was siphoning kerosene by sucking a hose and aspirated the kerosene.” Significantly, the Veteran was afforded an April 2020 VA examination in connection with the hearing loss and tinnitus claims. The VA examiner documented that the Service Treatment Records (STRs) contain only a 1961 Whisper Test which is not frequency specific. Later this is referred to as a “missing” entrance examination. The VA examiner went on to render incomplete negative nexus opinions. For bilateral hearing loss disability, the VA examiner opined: Although entrance audiologic evaluation was missing from the veteran’s records file, precluding the ability to determine whether the veteran experienced significant threshold shifts during military service, hearing sensitivity was shown to be within normal limits at all test frequencies in both ears upon separation evaluation. Furthermore, the veteran’s MOS had a moderate noise probability and no complaints nor reports of hearing loss/hearing difficulty were located in the veteran’s records file during service, nor within a reasonable time frame following separation from service in 1968 (over 50 years ago). Therefore, although the veteran reported hazardous noise exposure during military service, objective evidence in support of the veteran’s current hearing loss to be a result of military noise exposure is insufficient. Absent any evidence supporting acoustic trauma and/or a significant decline in hearing during military service or within a reasonable time frame following service, it is the opinion of this medical examiner that the veteran’s hearing loss is less likely than not due to military noise exposure. For tinnitus, the VA examiner relied upon the Veteran’s lay report of an onset “around 1971” and that development of tinnitus secondary to hazardous noise exposure is unlikely years after the reported event. The VA examiner also opined: Furthermore, although the veteran reported hazardous noise exposure during military service, no evidence of verifiable noise injury could be located in the veteran’s claims file, no complaints nor reports of tinnitus could be located in the veteran’s claims file during military service nor within a reasonable time frame following separation from service, and the veteran’s hearing sensitivity was shown to remain within normal limits upon military separation. Later, the April 2020 rating decision includes favorable findings. There was evidence of both claimed disabilities, but no nexus. The RO also vaguely found, “The evidence shows that a qualifying event, injury, or disease had its onset during your service. Military records show you had a low, moderate, or high probability of exposure to hazardous noise exposure.” Recently, the January 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) contains additional lay evidence which we may not review under the AMA. It may still be considered as an argument that previously submitted lay evidence establishes noise exposure in service which should be considered. The Board observes that there is a lay history of credibly reported noise exposure in service. Next, the February 2021 Informal Hearing Presentation (IHP) reads in part, “The Veteran is essentially challenging the reasons and bases for the unfavorable decision. The Veteran remains in disagreement with the previous RO decisions and believes the evidence of record supports his claim.” Here, the Veteran has submitted lay evidence of noise exposure in service suggesting a positive nexus, however, it is still inconclusive whether the claimed disabilities are related in service. Deficiencies in the record render the evidence insufficient for adjudication purposes. The April 2020 VA audiological examination lacks a complete rationale. It did not fully reconcile the Veteran’s reported history of noise exposure in service, including submitted by way of the February 23, 2019 VA 21-4138 Statement in Support of Claim. It also fails to consider the injury, later claimed as vertigo, which represents at least one documented event in service. With respect to the rationale of diagnosing the disease within a “reasonable time frame following separation,” this is inconsistent with long-settled law for hearing loss. VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran has continued to offer competent and credible lay statements of events in service that exposed him to hazardous noise without hearing protection. Lastly, the VA examiner’s rationale for the negative nexus opinion for tinnitus as two years after separation is flawed. The Veteran reported tinnitus “around 1971,” rather than precisely from that year. Lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The record contains earlier reports of the onset of tinnitus in service. See, e.g., September 20, 2013 VA Audiology Consultation. The aforementioned VA audiological examination is insufficient for the purposes of adjudicating these two appeals. The Board observes that the AMA provides that remands are warranted based on VA’s duty to assist prior to the AOJ decision. Pub. L. No. 115-55, § 2(d)(2). The AMA structure allows remand only where VA has committed error in the duty-to-assist (DTA) prior to the decision on appeal. Indeed, a medical opinion is adequate when it is based upon consideration of the Veteran’s prior medical history and examinations, and also describes the disability in sufficient detail so that the Board’s “evaluation of the claimed disability will be a fully informed one.” Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Veteran should be afforded a complete VA audiological examination with medical opinions to determine the nature and etiology of the claimed bilateral hearing loss disability and tinnitus. In requesting additional development on remand in this case, the Board notes that the basis for this remand arises from deficiencies in the record existing prior to the appealed AMA decision. Therefore, a remand is necessary to ensure due process is followed and so that there is a complete record upon which to decide the Veteran’s claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Please schedule the Veteran for an examination by an appropriate clinician to determine the nature, etiology, and severity of the Veteran’s bilateral hearing loss disability and tinnitus. Any audiometric testing results from the examination should be associated with the claims file. The VA examiner should document the Veteran’s credibly reported history of noise exposure without hearing protection in service. First, the examiner must opine whether any diagnosed bilateral hearing loss disability is at least as likely as not related to an in-service injury, event, or disease, including work as an Administration Supervisor in the U.S. Air Force. Second, the examiner must opine whether any diagnosed tinnitus is at least as likely as not related to an in-service injury, event, or disease, including work as an Administration Supervisor in the U.S. Air Force. Attention is invited to the Veteran’s lay history of noise exposure documented in the VA 21-4138 Statement in Support of Claim, received by VA on February 23, 2019. A complete rationale should be provided for all opinions expressed. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.