13-11 907
13-11 907
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served on active duty Aug 1966–Aug 1968 and claims service connection for bilateral hearing loss, tinnitus, and a respiratory disability (residuals of bronchial pneumonia).
- RO denied service connection in Aug 2012; appeal progressed to the Board after remand and additional VA examinations/medical opinions were obtained.
- Record shows in-service artillery training and lay statements supporting noise exposure; service treatment records include a resolved upper respiratory infection in May 1967.
- VA and private audiometric testing (Aug 2012, Sept 2012, Dec 2015) establish current bilateral sensorineural hearing loss and tinnitus; VA pulmonary testing found no current chronic respiratory disability.
- VA examiners concluded hearing loss and tinnitus were less likely than not related to service (citing normal or non-significant in-service shifts, aging, and post-service noise exposure); the private audiologist reached contrary opinions but did not address intervening factors.
- Board found no chronic or continuous in‑service symptoms, no manifestation within one year of separation, no current chronic respiratory disability, and thus denied service connection for all three claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection — bilateral hearing loss | Hearing loss caused by in‑service artillery/noise exposure | VA: no chronic symptoms in service or within one year; intervening aging and post‑service noise; VA exams—no nexus | Denied — preponderance against nexus and no presumptive continuity or manifestion within one year |
| Service connection — tinnitus | Tinnitus caused by in‑service noise/acoustic trauma | VA: no tinnitus or relevant audiological findings in service; later onset, aging/post‑service noise; VA exams—no nexus | Denied — no continuity or nexus; not shown within one year |
| Service connection — respiratory disability (residuals of bronchial pneumonia) | Residuals stem from 1967 upper respiratory infection in service | VA: service illness resolved; current pulmonary testing shows no chronic respiratory disability; medical records show only intermittent acute events post‑service | Denied — no current chronic respiratory disability proven, so no service connection |
| VA duty to notify/assist | VA complied with VCAA and duties per remand | VA asserts it obtained necessary records and adequate exams/opinions | Held — VA satisfied notice and assistance duties; opinions found adequate |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (remand return required when VA fails to follow Board remand instructions)
- Dingess v. Nicholson, 19 Vet. App. 473 (2006) (VCAA notice requirements apply to all elements of service‑connection claims)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must ensure adequacy of examinations/opinions)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (presumptive rules for chronic diseases and continuity of symptomatology apply to hearing/tinnitus)
- Fountain v. McDonald, 27 Vet. App. 258 (2015) (tinnitus can be a chronic disease where there is evidence of acoustic trauma)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.) (lack of contemporaneous records and long delay are relevant against service connection)
- Maxson v. Gober, 230 F.3d 1330 (Fed. Cir.) (long post‑service delay in reporting symptoms is a factor to consider)
- Gonzales v. West, 218 F.3d 1378 (Fed. Cir.) (Board need not discuss every piece of evidence)
- Charles v. Principi, 16 Vet. App. 370 (2002) (lay observation is competent to establish tinnitus symptoms)
- Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (service connection requires proof of a present disability)
- Brammer v. Derwinski, 3 Vet. App. 223 (1992) (no claim without proof of present disability)
- McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if disability existed at any point during claim period)
- Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (current disability may be diagnosed during the claim's pendency)
- Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir.) (need for medically competent evidence of a current disability)