Citation Nr: 21026356 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-21 351 DATE: April 30, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for a psychiatric disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a bilateral hearing loss disability began during active service; or manifested to a compensable degree within one year after discharge from active duty; or was noted in service with continuity of symptomatology; or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that tinnitus began during active service; or manifested to a compensable degree within one year after discharge from active duty; or was noted in service with continuity of symptomatology; or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1962 to September 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. The Veteran contends that his hearing loss disability and tinnitus began in service and/or are due to in-service noise exposure. In a July 2010 claim, the Veteran reported his hearing loss and tinnitus began in 1966. In a September 2010 VA record, the Veteran reported gradual onset of bilateral hearing loss several years prior. A June 2012 statement from the Veteran reflects his report that he worked as a driver for a general in service and that he was exposed to flight line noises when taking the general to the plane, which he believed caused his current hearing problems. At a January 2017 Decision Review Officer hearing, the Veteran asserted his hearing loss was due to in-service noise exposure, to include that he served as a driver for a general and was frequently near the flight line and aircraft without hearing protection. At the February 2020 VA examination, the Veteran reported onset of hearing loss and tinnitus was 15 to 20 years ago. As an initial matter, it is noted that the Veteran has a hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. The Board concludes that, although the Veteran has bilateral hearing loss disability and tinnitus, and evidence shows in-service noise exposure, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss disability and tinnitus began during active service; or manifested to a compensable degree within one year after discharge from active duty; or was noted in service with continuity of symptomatology; or is otherwise related to an in-service injury or disease. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Here, the Veteran’s service treatment records include no complaints or findings for hearing loss or tinnitus. Indeed, an August 1966 Report of Medical History on service separation reflects that he denied having, or ever had, hearing loss or ear trouble. Further, he denied injury other than those noted, which did not include any injury to the ear, hearing mechanisms or acoustic trauma. Hearing loss and tinnitus complaints are first documented in July 2010 on the Veteran’s VA disability application that included hearing loss and tinnitus disabilities, which he reported began June 29, 1966. See VA Form 21-526 (July 2010). Tinnitus is again documented in an August 2010 VA treatment note—at that time, the Veteran reported complaints of constant ringing ears. A September 2010 VA treatment note reflects complaints of hearing loss that began several years earlier and had gradual onset. It was noted that the Veteran had impacted cerumen that was removed via ear lavage. A March 2012 VA examination reflects diagnoses for bilateral sensorineural hearing loss and a medical history for recurrent tinnitus. As to tinnitus, the Veteran reported its onset several years ago. The Board notes that the Veteran’s service personnel records corroborate that his duties included diving and supervising divers of dignitaries and being a personal driver for the Deputy Chief of Staff. See Military Personnel Record. A February 2020 VA examination confirmed the presence of hearing loss disability and tinnitus. By history, the Veteran reported onset of hearing loss 15 to 20 years prior and had mild noise exposure from his 19 years on the assembly line at General Motors without hearing protection. The associated VA medical opinion (VAMO) reflects that the Veteran’s conditions are not at least as likely as not related to an in-service injury, event, or disease, including noise exposure based on the Veteran’s history of onset coupled with the normal STRs, and absence of findings for decades after the Veteran’s military service. In this regard, it was noted the Veteran’s history of onset of hearing loss roughly 15 to 20 years earlier, which placed its onset between 2000 and 2005; and that while there was in-service noise exposure reported as from noise exposure of driving frequently near the flight line, the Veteran also had noise exposure from his post service occupation—he worked for General Motors for 19 years on the assembly line with mild noise exposure and no hearing protection. The VAMO explained, given that hearing was normal at service discharge and the Veteran reports onset of hearing loss 40 years after service, the Veteran’s hearing conditions were less likely than not related to in-service-noise exposure. Also, although accepting the Veteran’s report of noise exposure in service, the opinion reflects that the STRs and medical history do not support that the Veteran had acoustic trauma in service. The Board finds that the competent, credible evidence of record does not show that the Veteran’s claimed hearing conditions began in service or soon after service, to include within the one-year presumptive period following his service discharge. The competent, credible evidence of record shows that his hearing conditions began decades after service and are less likely than not due to his reported noise exposure in service. The Board accepts the Veteran’s report of noise exposure during service, to include while serving as a driver for a general and being frequently near the flight line and without hearing protection. Again, the Veteran’s personnel records corroborate these duties. However, he is not competent to provide a nexus opinion as the etiology of his hearing disorders, reported by him on VA exam to have begun long after service, it not susceptible to lay observation. Indeed, the etiology of hearing loss and tinnitus is an intricate matter that requires an understanding of the body’s hearing mechanism, disease processes, and signs/symptoms of injury to those mechanisms. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Therefore, the Board finds that the Veteran's opinion has no probative value in this matter. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). To the extent continuity of symptomatology since service is argued or suggested, the Board finds the lay statements of record not credible. See Caluza, 7 Vet. App. at 511 (finding that in weighing credibility, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). In this regard, the Board observes that the Veteran has been an inconsistent historian insofar as he denied hearing loss and ear trouble on service separation, then later reported on his July 2010 VA disability application that his hearing conditions began in June 1966, and yet later reported on the 2020 VA examination that they began decades after his service discharge (i.e. between 2000 and 2005). Also, the Board is fully aware that the applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). However, in a merits context, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. Savage v. Gober, 10 Vet. App. 488 (1997). The Board as fact finder is obligated to and fully justified in determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Similarly, the Board can weigh the absence of contemporaneous medical evidence against the lay evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (2006). In this instance, there is no reliable post-service showing of any continuity of hearing loss or tinnitus-type symptomatology, or evidence of either condition began within one year of discharge from active duty. Further, the earliest mention of any hearing symptomatology dates to 2010, decades after service separation. Much of the evidence, as discussed above, shows that the Veteran started to develop symptomatology of his hearing loss and tinnitus numerous years after service. Considering the above lay and medical evidence, the Board finds the lay assertions of continuity of hearing loss symptomatology are not credible and, therefore, do not provide a basis to establish service connection. The Board assigns greater probative value to the Veteran’s STRs and the many years intervening his military service and the first documented complaints and findings for hearing loss and tinnitus. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). The Board also assigns greater probative value to the February 2020 VAMO than the Veteran’s medical opinion as it was prepared by a clinician with specialized knowledge of the ears and auditory system. Further, the opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data and considered the Veteran’s noise exposure during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the examiner did note the lack of hearing loss disability at service discharge, they also provided other factors in their supporting explanation. See Ledford v. Derwinski, 3 Vet. App. 87 (1992) (noting that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disorder is remanded. The Veteran asserts that he has a psychiatric disorder related to several incidents that occurred during service: (a) the death of his father in an accident; (b) a barracks fight in which a servicemember tried to assault him with an axe and then a screwdriver; (c) the death of a fellow servicemember; and (d) and near miss incident in a prop plane. See August 2010 statement; February 2011 statement; and March 2011 statement. VA treatment records provide diagnoses of posttraumatic stress disorder (PTSD) and major depressive disorder. The Board finds that remand is required to obtain an adequate etiological opinion and to comply with prior remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA examiner’s failure to consider lay testimony when formulating her opinion renders that opinion inadequate. McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). First, remand is required to attempt to corroborate the Veteran’s stressors. The prior Board remand directed the RO submit the alleged stressors to the Joint Services Records and Research Center (JSRRC) for corroboration. In February 2020 and May 2020 letters, the RO requested a 60-day time period from the Veteran regarding the occurrence of his alleged stressors. The Veteran did not provide any information. The RO thus concluded it could not submit the stressors for verification. There is, however, no statutory or regulatory requirement that the Veteran provide a 60-day time period and the Veteran has provided potential dates for 3 of the 4 alleged stressors. The RO’s actions do not constitute substantial compliance with the remand directives and thus an additional remand is required. Second, remand is required to obtain an adequate examination and opinion. The prior Board remand requested an opinion that addressed an August 2010 psychiatric evaluation that noted multiple in-service traumas and in which the Veteran reported major depressive episodes since service. An examination was conducted in October 2020. The examiner diagnosed major depressive disorder and opined that it was not incurred in or caused by service, noting that the evidence does not clearly support a direct nexus to the diagnoses listed in the records, and although these stressors may have impacted the Veteran, there is no evidence of treatment for 34 years post military and the Veteran was not in combat. Initially, the examiner noted the August 2010 VA record and the Veteran’s statements but did not “expressly discuss” them. Further, the examiner found there was no diagnosis of PTSD, but did not address the prior diagnoses in the Veteran’s treatment records. Finally, the supporting explanation is unclear as it suggests that in-service stressors did “impact” the Veteran, but that because he didn’t seek treatment for a long period of time, the disability was unrelated to service. Accordingly, the opinion does not comply with prior Board remand directives and is supported by an inadequate rationale. Remand is thus required for another opinion. Further, it does not appear that the RO sent the Veteran a notice letter for his allegations of personal assault as required under 38 C.F.R. § 3.304(f)(5). This must also be done on remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2014 to the Present. 2. Provide the Veteran with an updated letter that includes information on the evidence required to substantiate a claim based on personal assault. He should be given examples of the types of evidence that may be submitted to corroborate his account of the stressor incidents. 3. Attempt to corroborate the Veteran's in-service stressors, including the following: (a) his father’s death during an accident in 1963; (b) the death of a fellow servicemember in 1962, 1963, or 1964 at Scott Air Force Base in a vehicle incident wherein the airmen was essentially beheaded; (c) a barracks fight at Scott Air Force Base in 1963 or 1964, in which a fellow servicemember attempted to assault him with an axe and then a screwdriver; and (d) a near0miss incident in a prop airplane what at Scott Air Force Base. This should include, but is not limited to, a request for verification from the JSRRC. Document all requests for information as well as all responses in the claims file. 4. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD and/or depressive disorder. First, the examiner shall provide all psychiatric diagnoses. If PTSD is not diagnosed, the examiner shall address the prior diagnoses of record. Second, if the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. Third, the examiner must opine whether the evidence of record, including the Veteran’s lay statements, and the Veteran’s service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assaults and other incidents. Fourth, if any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the in-service personal assaults and other incidents. 5. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M., 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.