Citation Nr: 21023081 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-20 376 DATE: April 20, 2021 ORDER Entitlement to service connection for a sinus disability is granted. Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s sinus disability began during active service and has been continuous to the present. 2. The probative evidence of record indicates the Veteran’s right ear hearing loss is a result of service or is etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for a sinus disability has been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a grant of service connection for right ear hearing loss has been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1976 until his honorable discharge in November 1980, with additional honorable service in the United States Navy from February 1981 to February 1984. The Board of Veterans’ Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the issue of entitlement to service connection for bilateral hearing, a back disability, a left knee disability, a right knee disability, sleep apnea, and a sinus disability, to the Agency of Original Jurisdiction (AOJ) for examinations and medical opinions. An October 2020 rating decision granted service connection for degenerative arthritis of the spine with strain, left knee degenerative arthritis, right knee degenerative arthritis, and sleep apnea; thus, these issues are no longer on appeal. The issue of entitlement to service connection for (1) a sinus disability and (2) bilateral hearing loss are once again before the Board. The Board finds there has been substantial compliance with the October 2018 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 § C.F.R. 3.303. 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). Generally, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) include sensorineural hearing loss. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element three-part test under Shedden. Walker, 708 F.3d at 1138; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for any evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67; Layno v. Brown, 6 Vet. App. 465 (1994). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (Fed. Cir. 1996). 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, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a sinus disability. The Veteran contends his current sinus disability had its onset during military service and he has continuously experienced relevant symptoms since that time. See January 2012 VA Form 21-526; April 2016 VA Form 21-4138. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a sinus disability. See September 2019 QTC Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx (Sinusitis/Rhinitis) examination report. Turning to the second element of service connection, an in-service incurrence, the Board finds this element is also met. On his Notice of Disagreement, the Veteran stated his sinuses “bothered him a lot due to increased times he was in and out of freezers and walk-in coolers.” He recalled having a lot of drainage from his nose and ears and stated that he was treated at Boone Clinic and Portsmouth Naval Hospital. The Veteran’s service treatment records (STRs) confirm his military occupational specialty was “Cook.” As the Veteran’s description of the above-referenced in-service injury is consistent with his circumstances of service, the Board finds there is competent credible evidence of an in-service event or injury. See Caluza, 7 Vet. App. 498. Additionally, while the Veteran’s STRs do not show a diagnosed sinus disability, his STRs show he sought treatment for sinus related symptoms while in-service. For example, in November 1980 he sought treatment for complaints of sore throat, cough, nasal stuffiness, and inflammation of throat. In March 1981, he sought treatment for complaints of myalgia, earaches, and cough. In April 1981 he sought treatment for chronic complaints of ear pressure with discharge, and headaches. Next, the Board finds the evidence is in relative equipoise as to whether the Veteran had the onset of symptoms of a sinus disability in service and since service separation. Regarding the Veteran’s assertions he has experienced sinus disability symptoms in service and following service, the Board finds the Veteran competent and credible to report the onset of symptoms of that disability. Furthermore, the Board finds the Veteran is competent and credible to report the continuation of symptoms of that disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Caluza, 7 Vet. App. 498. Turning to the medical opinions of record regarding the etiology of the Veteran’s sinus disability, the Veteran attended a QTC Sinusitis/Rhinitis examination in July 2013. During the examination the Veteran reported his sinus disability began in 1981 while on active duty. The examiner provided a negative nexus opinion stating there was no pathology to render a diagnosis. The examiner stated the condition in question was clearly documented by physicians in the available medical records, therefore, the diagnosis of “status post” applies to the condition in question. In the October 2018 remand decision, the Board found the July 2013 QTC examiner did not provide sufficient rationale to explain the apparent contradiction as to whether the Veteran has a diagnosed sinus disability. Therefore, an additional examination and opinion was necessary to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Pursuant to the October 2018 remand decision, VA obtained a QTC Sinusitis/Rhinitis examination in September 2019. The examiner diagnosed chronic sinusitis and non-allergic rhinitis. The examiner stated the Veteran’s condition began in 1982 at Little Creek, Norfolk. The examiner stated, “the symptoms during onset were headaches, runny nose, tiredness, ‘running eyes’, popping ears and shortness of breath.” The examiner noted the Veteran currently experiences headaches at times, popping ears at times, runny nose, headaches, tiredness, and shortness of breath. The examiner opined the Veteran’s sinus disability is more likely than not incurred in or caused by service, providing the following rationale: Based off the recent examination, the Veteran is diagnosed with chronic sinusitis and allergic rhinitis dating back in 1992. Veteran is diagnosed with chronic sinusitis, that means this condition is recurrent, it may resolve and may reoccur anytime and may be triggered by several factors. The examiner concluded the current sinus disability is at least as likely as not a continuation of the diagnosed chronic sinusitis incurred during service. Despite the September 2019 positive opinion, the RO obtained an additional opinion in June 2020. The June 2020 examiner opined there is no chronic sinusitis in service, it was after military service, and therefore, it is less likely than not that the claimant’s intermittent sinusitis occurred or was incurred while in service. In the October 2020 post-remand Supplemental Statement of the Case (SSOC) the AOJ continued the denial of the claim essentially on the reasoning of the previous denial, that there was no evidence of an in-service sinus condition. The AOJ did not mention the Veteran’s lay statements or the September 2019 examiner’s positive medical opinion. It is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). After review of the record, the Board finds service connection for a sinus disability is warranted. Here, the Board finds the September 2019 opinion is highly probative as it reflects consideration of all the relevant facts and is supported by the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addressing the other evidence of record, the Board acknowledges the June 2020 negative opinion accorded great weight to the fact the Veteran did not have chronic sinusitis in service. The Board finds the opinion to be of diminished probative value. The examiner failed to consider the in-service symptoms, as summarized in the September 2019 examination report, as well as the competent credible evidence of the Veteran’s report of the onset of his sinus disability symptoms in service, and the continuation of those symptoms in the years since. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Board finds the Veteran to be both competent and credible concerning the testimony related to his sinus disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s statements regarding his in-service incurrence and resulting sinus disability symptoms since service separation are competent evidence as to factual matters of which he has first-hand knowledge and the presence of observable symptoms; they are given great probative weight. Layno, 6 Vet. App. 465. A lay person is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through their senses. Id. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Furthermore, it is significant that the September 2019 examiner opined the Veteran’s sinus disability is likely to have occurred while on active duty. 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(b); see also Gilbert, 1 Vet. App. 49. Here, in light of the positive and negative evidence of record, to specifically include the Veteran’s competent and credible statements regarding his sinus disability symptoms after service, and positive and negative medical nexus opinions, the Board finds the evidence is at least in equipoise regarding whether the Veteran’s sinus disability was incurred in service. In affording him the benefit of the doubt, service connection for a sinus disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection right ear hearing loss. Impaired hearing is defined as a disability under VA law 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 threshold for normal hearing is from 0 to 20 decibels; higher thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Initially, the Board notes the AOJ made the following favorable findings: (1) the Veteran has been diagnosed with a right ear hearing loss disability and (2) the Veteran’s military occupational specialty of “Cook” shows a low probability of exposure to hazardous noise, so exposure to hazardous noise during military service is presumed. These are favorable findings that will not be readjudication by the Board. Thus, the question before the Board is whether the Veteran’s right ear hearing loss was incurred in or related to his military service, to include presumed in-service noise exposure. The Veteran’s STRs show the Veteran had his hearing tested in November 1976, the beginning of his initial period of active duty service; a May 1978 audiogram demonstrates “moderate high frequency hearing loss, right ear.” The Veteran had his hearing tested in February 1981, the beginning of his second period of active duty service, and in January 1984, at his separation from active duty service. The puretone thresholds during these examinations do not rise to the level of a hearing disability for VA purposes, however they do show some degree of hearing loss. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. On his initial application for service connection, the Veteran stated his hearing loss began in 1981. See January 2012 VA Form 21-526. In her “Buddy Statement”, the Veteran’s spouse, J.S., stated she noticed the Veteran’s difficulty with hearing in 1980. She recalled when speaking to him in a normal tone, the Veteran stated he could not hear her, or would ask her to repeat herself. See January 2012 VA Form 21-4138. In his April 2016 statement, the Veteran asserted he experienced symptoms of hearing loss while on active duty and those symptoms continued since service separation. Pursuant to the October 2018 remand decision, VA obtained a QTC audiological examination in September 2019. The examiner diagnosed the Veteran with right ear sensorineural hearing loss. The examiner remarked, the Veteran has worked as a culinary specialist with noise exposure from ventilation systems, steam kettles, shipboard and shipyard noise, and is a right-handed shooter. The examiner opined the Veteran’s condition was less likely than not related to active duty military service. In providing the negative nexus opinion, the examiner stated the medical service records did not show a significant threshold shift or hearing loss per any VA standard for the right ear during active duty service. The Board notes, the September 2019 examiner diagnosed tinnitus and stated, tinnitus onset was dated to active duty service when the Veteran was exposed to hazardous noise from ventilation system, steam kettles, shipboard and shipyard noise. See September 2019 examination report. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board finds the September 2019 medical opinion to be inadequate. In this regard it must be clear the examiner has considered all procurable and assembled data prior to reaching such a conclusion. Jones v. Shinseki, 23 Vet. App. 382 (2010). Specifically, the examiner did not address the Veteran’s competent and credible statements regarding in-service onset and continuity of symptoms since service separation. Additionally, the Board notes, a negative etiological opinion based solely upon a lack of evidence of complaints or treatment for symptoms in a Veteran’s service treatment records is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, as noted above, entitlement to service connection for hearing loss does not require the criteria under 38 C.F.R. § 3.385 be met during service. Hensley, 5 Vet. App. 155. As the September 2019 medical opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. Although there is no medical nexus opinion of record linking the Veteran’s current diagnosis of right ear hearing loss to his active service, the lack thereof is not dispositive. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with his right ear hearing loss and finds he has done so. As discussed above, the Veteran reported experiencing symptoms of hearing loss while in service. The Veteran is competent to report the onset and continuation of his hearing loss, and the Board finds his statements credible. See Layno, 6 Vet. App. 465. The Board notes lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis of a medical professional. Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). After a careful review of the record, the Board finds the Veteran’s right ear hearing loss had its onset in service, due to hazardous noise exposure, and it has continued since that time. Walker, 708 F.3d at 1338. In this regard, the Veteran has competently and credibly indicated the onset of right ear hearing loss during his military service, coincident with his duties as a Cook, and that he has continued to experience such symptoms since service. He is competent to report symptoms of hearing loss, as they are subject to and readily observable by laypersons, and the Board has no reason to doubt his credibility. Thus, the Board resolves all doubt in the Veteran’s favor and finds his right ear hearing loss is related to in-service noise exposure. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Entitlement to service connection for left ear hearing loss is remanded. As noted above, in October 2018, the Board remanded the Veteran’s claim to the AOJ to obtain and associate with the file any outstanding VA and private treatment records, and to schedule the Veteran for an audiological examination to determine the nature and etiology of the Veteran’s bilateral hearing loss. Regrettably, the Board cannot proceed with final adjudication of the issue of entitlement to left ear hearing loss without prejudice to the Veteran, as relevant VA generated evidence, which may prove favorable to the Veteran’s claim, remains outstanding. A review of the electronic claims file reveals that relevant VA audiograms are missing from the available VA treatment records. A VA audiology consult record dated June 2012, indicates the Veteran underwent audiometric testing and, while the VA treatment record provides a summary of the findings, the specific results are not included. A subsequent September 2016 treatment record notes, “audiogram in CPRS from 2012,” but the audiogram itself is not visible. A VA audiology consult record dated June 2013, indicates the Veteran was being evaluated for hearing loss, with consultation forwarded to an audiologist in the community. A subsequent VA “Outside Medical Record (Fee Basis) Consult” dated October 2013, confirms the results were scanned into electronic medical records and can be reviewed by accessing VISTA IMAGING from the CPRS toolbar. (Document: Macio Audiological Services Diagnostic Report. Visit Date: August 12, 2013). A VA audiology consult record dated October 2016, indicates the Veteran underwent audiometric testing and, while the VA treatment record provides a summary of the findings, the specific results are not included. The missing audiograms may show a diagnosed left ear hearing loss therefore, these records must be obtained and associated with the claims file. The Board notes here, the presence of a chronic disability at any time during the claim process can justify a grant of service connection even if the disability has since resolved or where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The matters are REMANDED for the following action: 1. Obtain and associate with the electronic claims file a copy of the June 2012 audiogram referenced in the VA treatment records. 2. Obtain and associate with the electronic claims file a copy of the August 12, 2013 audiogram referenced in the October 2013 VA treatment records. 3. Obtain and associate with the electronic claims file a copy of the October 2016 audiogram referenced in the VA treatment records. 4. If it is not clear whether speech discrimination testing was conducted using the Maryland CNC word list, the AOJ should seek clarification from the facility/audiologist as to whether the Maryland CNC word list was utilized. 5. Additionally, if speech discrimination testing was not completed, the AOJ is requested to seek clarification from the facility/audiologist as to why speech discrimination testing was not conducted. See Savage v. Shinseki, 24 Vet. App. 259 (2011). 6. Then, readjudicate the issue of entitlement to service connection for left ear hearing loss. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.