11-18 291
11-18 291
| Board of Vet. App. | Mar 31, 2017Background
- Veteran served active duty Oct 1966–Oct 1968 as weapons infantry; claims on appeal from RO rating decisions denying service connection for bilateral hearing loss, tinnitus, and (separately remanded) hip replacement and increased PTSD rating.
- VA development: August 2009 VA exam diagnosed bilateral hearing loss and tinnitus; record includes induction (Sept 1966) and separation (Oct 1968) audiograms showing normal or non-disabling thresholds during service.
- Veteran reports significant in-service noise exposure (rifle fire, helicopters, mortars, artillery), no use of hearing protection, and onset of symptoms decades after discharge (tinnitus ~2002; gradual hearing decline).
- Multiple VA medical opinions (2009 examiner, 2014 addenda, and a detailed April 2016 VHA opinion) concluded it is less likely than not that hearing loss/tinnitus are related to in-service noise; examiners cited normal separation audiogram, absence of a noise "notch," occupational/recreational noise and presbycusis as alternative etiologies.
- Veteran/representative submitted medical literature arguing early noise exposure can accelerate age-related hearing loss; Board found those articles general and not persuasive against the specific, well-reasoned VHA opinion.
Issues
| Issue | Veteran's Argument | VA/Board's Argument | Held |
|---|---|---|---|
| Service connection: bilateral hearing loss | Hearing loss caused by in-service noise exposure; literature shows delayed onset possible | Service audiograms normal at separation; VA medical opinions find no nexus and point to occupational/recreational noise and presbycusis | Denied — no service connection |
| Service connection: tinnitus | Tinnitus related to in-service noise; may present years later | Tinnitus typically accompanies noise-induced hearing loss; absent NIHL nexus, tinnitus not service-connected | Denied — no service connection |
| Service connection: status post bilateral hip replacement | (Claim raised; NOD filed) | RO denied in Oct 2010; statement of case not yet provided | REMANDED to AOJ for statement of the case and further action |
| Initial rating >30% for PTSD | (Claim on appeal; Vet Center treatment exists) | Vet Center records not in file; further development needed | REMANDED to obtain Vet Center and recent VA mental-health records and readjudicate |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements for service connection)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology limited to chronic diseases listed in regulation)
- McKinney v. McDonald, 28 Vet. App. 15 (2016) (presumption of soundness when entrance exam does not show a disability under VA criteria)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (requirements for an adequate medical opinion)
- Stefl v. Nicholson, 21 Vet. App. 120 (2007) (weight of medical opinions tied to rationale and foundation)
- Kahana v. Shinseki, 24 Vet. App. 428 (2011) (limits on lay competence to opine on complex medical etiology)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt rule)
- Bernard v. Brown, 4 Vet. App. 384 (1993) (appellate review may proceed when development completed)