Citation Nr: 21031657 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-52 519 DATE: May 24, 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 back disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, tinnitus is etiologically related to his period of active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to December 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran submitted a September 2013 Statement in Support of Claim requesting reconsideration for the issues of his back injury, left ankle, asthma, hypertension, bilateral hearing loss and tinnitus. Thereafter, in August 2014, the RO denied the claims in another rating decision. In addition, in August 2014, the Veteran submitted a notice of disagreement (NOD). In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. 1. Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For certain chronic disorders, to include tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1331. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. The Veteran is seeking service connection for tinnitus. The Veteran has reported recurrent tinnitus. See February 2013 VA examination. In-service exposure to hazardous noise is conceded by virtue of his military occupational specialty (MOS) of wheel vehicle mechanic/truck mechanic. Therefore, the question in this case is whether a causal relationship or nexus exists between the Veteran's currently diagnosed tinnitus and his confirmed military noise exposure. Based on a careful review of the subjective and clinical evidence of record, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for tinnitus is warranted. The Veteran was afforded a VA examination in February 2013.The Veteran reported recurrent tinnitus since military service. The examiner opined that the Veteran has a diagnosis of clinical hearing loss and his tinnitus is at least as likely as not a symptom associated with the hearing loss as tinnitus is known to be a symptom associated with hearing loss. The examiner also opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner stated that the Veteran's hearing loss was not recorded at entrance or exit examination. The Board finds this opinion to be inadequate because as for whether the Veteran's tinnitus was related to military exposure, the examiner based the negative opinion solely on a lack of documented tinnitus at entrance or exit examination. The Board acknowledges that the record does not contain an adequate medical opinion regarding the etiology of the Veteran's tinnitus. Nonetheless, the Board finds that there is sufficient evidence in the record to decide the claim. In the absence of an adequate medical opinion to the contrary, the Board accepts the Veteran's statement that his symptoms of tinnitus began during service and have continued ever since. In this regard, the Board acknowledges that the Veteran is competent to report his symptoms and to provide a history as to their nature and extent, such as when these symptoms began and whether they were intermittent, continuous, or progressive in nature or severity. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is a type of disability that may be diagnosed on the basis of lay evidence alone). The Board finds the Veteran's statements to be credible and consistent with the nature and circumstances of his service. See Layno, 6 Vet. App. at 469-70. Based on the Veteran's competent and credible statements regarding the onset and continuity of his symptoms of tinnitus, the Board finds that the evidence is at least in equipoise that the Veteran's tinnitus was incurred in or caused by in-service noise exposure. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is related to his military noise exposure. The Veteran testified that as a mechanic, he worked on heavy machinery, trucks, and in a motor pool. The Veteran stated that he was not required to wear earplugs and the trucks were very loud. The Veteran indicated that there was a lot of excessive noise if there were two or three trucks running inside the motor pool at the same time. In-service exposure to hazardous noise is conceded by virtue of his military occupational specialty (MOS) of wheel vehicle mechanic/truck mechanic. The Veteran was afforded a VA examination in February 2013. The VA examiner opined that the Veteran's hearing loss is less likely related to noise exposure because entrance and separation audiometric examinations revealed normal hearing during service. Under governing caselaw, the absence of a hearing loss in service is not fatal to a claim of service connection for hearing loss (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)). Therefore, the opinion offered is inadequate, and a remand for a new VA examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination or opinion that is adequate for rating purposes). 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. The Veteran contends that his back and left ankle disabilities are related to an injury in service. At his Board hearing, the Veteran testified that on one particular night, while stationed in Germany, he was on his way home from company quarters, and he got run off the road by a driver. The Veteran stated that his car flipped three times. The Veteran testified that he was taken to the hospital and got a DUI for the accident. The Veteran, however, expressed that he was not drunk, but that he had alcohol on his breath. In an October 2012 Statement in Support of Claim, the Veteran stated that he has never been in any trouble before this incident. Initially, the Board notes that the Veteran's STRs appear incomplete. Specifically, the Veteran testified to being taken to a hospital after a car accident in Germany, and receiving a DUI. However, the Veteran's service treatment records are absent of any hospital records reporting on the accident the Veteran described. The Board notes that the record does include the Veteran's military personnel records which contain a November 1973 Article 15. The Article noted that the Veteran was operating a vehicle while drunk, in that following an accident he was involved, the Veteran refused to submit to a blood alcohol test. The Veteran also submitted a VA Form 21-4142, Authorization for Release of Information, in April 2014 for records from the National Personnel Records Center. Thus, it appears that outstanding service treatment records may be missing from the file. As such, additional development is required. In addition, the Veteran testified at his Board hearing that he has been receiving treatment from the same private doctor, Dr. Eagerton, since the 1980s. The Veteran also testified at a DRO hearing that he has been seeing Dr. Eagerton since the 1970s. Although the claims file contains treatment records from Dr. Eagerton, the earliest treatment record appears to be dated in 2008. Thus, on remand, the AOJ should attempt to obtain outstanding private treatment records from Dr. Eagerton prior to 2008. 4. Entitlement to service connection for asthma is remanded. The Veteran is seeking service connection for asthma. The Veteran testified that he had asthma before entering service and that his pre-existing asthma was aggravated by service. The Veteran stated that as a diesel mechanic, he was exposed to diesel fumes that aggravated his asthma. The Veteran also stated that the motor pool had a lot of dust that aggravated his asthma. In addition, the Veteran has previously claimed that he was exposed to asbestos in service. The Veteran was afforded a VA examination in July 2013.The examiner diagnosed the Veteran was asthma. The examiner indicated that the claims file was not received and thus the requested medical opinion could not be provided in full. The examiner opined that the Veteran's asthma was less likely than not incurred in or caused by the Veteran's military service. The examiner stated that asbestos has not been shown to cause asthma. However, the examiner noted that he would need to review the records of complaints of asthma in the service treatment records to determine if onset of asthma was during active duty. In an August 2013 addendum opinion, the examiner opined that the Veteran's asthma is less likely as not caused by or a result of active military service. The examiner noted that in the Veteran's pre-induction report of medical history, the Veteran indicated that he had pre-existing asthma. Therefore, the examiner stated that the Veteran's asthma existed prior to his military service. The examiner expressed that the Veteran's asthma is less likely as not aggravated by his active military service as there's only one episode of asthma noted during active service that was treated on April 16, 1973 and followed up two days later. The examiner stated that it has been described in medical literature that it is common that children that had asthma during childhood with resolution of symptoms have asthma reappear in adult life. The Board finds the July and August 2013 VA examinations to be inadequate for adjudication purposes. As the July 2013 VA examiner indicated that he did not have the claims file, the Board finds the examination to be inadequate. In addition, the Board finds the August 2013 VA examination to be inadequate for adjudication purposes. Here, although asthma was noted on his October 1970 report of medical history, the Veteran is presumed sound because there was no notation of a respiratory condition on acceptance, examination, or enrollment. The Board notes that the August 2013 VA examiner noted an asthma condition which preexisted the Veteran's induction into active duty service without using the more stringent "clear and unmistakable evidence" standard. See 38 C.F.R. § 3.304 (b). Crucially, when addressing the issue of entitlement to service connection for a disability characterized as preexisting service, which was not noted on examination for entrance to service, the correct legal standard to apply is whether there is clear and unmistakable evidence that the disability preexisted service and whether there is clear and unmistakable evidence that the disability did not undergo a worsening in service beyond that which would be due to the natural progression of the disability. This distinction is important, because "clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Accordingly, a new VA examination is necessary to address these deficiencies. 5. Entitlement to service connection for hypertension is remanded. The Veteran testified that his hypertension is related to service. The Veteran stated that he had a lot of stress in service that caused his current hypertension. To date, the Veteran has not yet received a VA examination. As such, prior to adjudication, an examination is in order. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to request and associate with the claims file any outstanding service treatment records, to include records pertaining to treatment following an in-service motor vehicle accident in Germany that resulted in injuries to the Veteran's back and ankle. If the RO cannot locate the aforementioned records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain these government records would be futile. The RO should then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Obtain all outstanding VA and/or private treatment records. Specifically request the Veteran to provide authorization to obtain private treatment records from Dr. Eagerton, from as early as the 1970/80s. 3. Schedule the Veteran for a VA audiological examination to ascertain the nature and etiology of the Veteran's bilateral hearing loss. The examiner should review the claims file and a copy of this REMAND. The examiner should specifically opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset during active duty, or is otherwise etiologically related to the Veteran's active duty service, to include as due to conceded noise exposure as a mechanic, who worked on heavy machinery, trucks, and in a motor pool. Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may provide 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. See Hensley v. Brown, supra. The Board notes that the Veteran was not diagnosed with hearing loss at separation, but that is not dispositive on the issue of whether current hearing loss is related to acoustic trauma in active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, then a reason for doing so must be provided. A complete and detailed rationale should be given for all opinions and conclusions expressed. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's asthma. The claims file to include a copy of this REMAND must be made available to the examiner for review. All indicated tests should be performed. The examiner should specifically opine as to: (a) whether there is clear and unmistakable evidence that any diagnosed asthma condition pre-existed the Veteran's active duty service? (b) If yes, is there clear and unmistakable evidence that any diagnosed asthma condition was NOT aggravated beyond the natural progression by the Veteran's active service? (c) If the answer to either (a) or (b) is no, is it as least as likely as not (50 percent probability or greater) that any diagnosed asthma condition was caused by or is otherwise related to the Veteran's active service. In considering the above, the examiner must address the Veteran's contentions regarding his asthma being aggravated by diesel fumes, dust in the motor pool, and/ or asbestos exposure. The Board notes that service treatment records are to be taken into consideration and reviewed by the examiner, but that the absence of documented treatment in service is not fatal to a service connection claim. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, then a reason for doing so must be provided. All findings and conclusions should be supported with complete rationale, and review of the file should be noted in the report. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's hypertension. The claims file to include a copy of this REMAND must be made available to the examiner for review. All indicated tests should be performed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was incurred in service or is related to any event in service. In rendering this opinion, the examiner MUST specifically address the Veteran's contentions that his hypertension is due to stress in service. The Board notes that service treatment records are to be taken into consideration and reviewed by the examiner, but that the absence of documented treatment in service is not fatal to a service connection claim. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, then a reason for doing so must be provided. All findings and conclusions should be supported with complete rationale, and review of the file should be noted in the report. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.