TINNITUS

Summary

The Veteran served from October 1964 to August 1968. The Veteran appeals the denial of service connection for bilateral hearing loss, metastatic melanoma, and prostate cancer, and seeks readjudication of the claim for tinnitus. The agency of original jurisdiction (AOJ) had previously made favorable findings for current tinnitus, bilateral hearing loss, metastatic melanoma, prostate cancer, and in-service noise and radiation exposure. The Board found that service connection for tinnitus was established, resolving doubt in the Veteran's favor based on his credible lay statements of continuity of symptoms and an inadequate VA medical opinion. The Board found the VA opinion for tinnitus lacked probative value as it failed to consider the Veteran's reports of ear and hearing issues since service. The claims for bilateral hearing loss, metastatic melanoma, and prostate cancer were remanded due to duty to assist errors. For hearing loss, the VA opinion was inadequate as it did not adequately address the Veteran's reported symptoms or the possibility of in-service noise exposure. For metastatic melanoma and prostate cancer, the Board found the VA opinions lacked sufficient rationale and did not adequately consider supportive private medical opinions, necessitating further development and clarification of the nexus to conceded radiation exposure.

Rationale

Favorable findings of current tinnitus and in-service noise exposure; Resolving doubt in Veteran's favor; Credible lay statements of continuity of symptoms; Inadequate VA medical opinion

Full Decision Text

Citation Nr: A22015005
Decision Date: 08/03/22	Archive Date: 08/03/22

DOCKET NO. 210706-170066
DATE: August 3, 2022

ORDER

Service connection for tinnitus is granted.

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded.

Entitlement to service connection for metastatic melanoma is remanded.

Entitlement to service connection for prostate cancer is remanded.

FINDING OF FACT

Resolving doubt in the Veteran's favor, the evidence shows the Veteran's tinnitus began in and continued since service.

CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION 

The Veteran served on active duty from October 1964 to August 1968. 

The rating decision on appeal was issued in February 2020 and constitutes an initial decision. In October 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claims of service connection for bilateral hearing loss, tinnitus, prostate cancer and metastatic melanoma. In December 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claims based on the evidence of record at the time of that decision.  

In the July 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. A December 2021 notification advised him that a hearing was scheduled for April 27, 2022. The Veteran did not appear for the scheduled Board hearing.

The Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following the date of the scheduled hearing. 38 C.F.R. § 20.302(c). The record shows evidence submitted outside the designated times, including a private medical opinion in August 2021, an audiogram in March 2021, and a statement in support of claim in July 2021. 

1. Service connection for tinnitus

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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"  also known as the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Based on the evidence, the Board finds the criteria for service connection for tinnitus have been met. 38 C.F.R. § 3.303.

In the December 2020 rating decision, the AOJ made the favorable findings of current tinnitus and the qualifying in-service event, injury, or disease of noise exposure. The Board is bound by those favorable findings. See 38 C.F.R. § 3.104(c). Accordingly, the first and second elements of service connection are established, and the remaining question is whether there is a nexus between in-service noise exposure and current tinnitus.

Resolving doubt in the Veteran's favor, the Board finds the evidence shows a nexus. In an October 2020 statement, the Veteran reported being subjected to significant and frequent altitude changes when he trekked up a mountain while stationed at Mt. Lemmon Air Force Base. He reported that he began having ear and hearing issues at that time. The Veteran's service personnel record show he was stationed at Mt. Lemmon Air Force Base, and the Board sees no reason to doubt the credibility of his reports of changes in altitude. 

More importantly, the Veteran reported continuous symptoms beginning in and
 the first and second elements of service connection are established, and the remaining question is whether there is a nexus between in-service noise exposure and current tinnitus.

Resolving doubt in the Veteran's favor, the Board finds the evidence shows a nexus. In an October 2020 statement, the Veteran reported being subjected to significant and frequent altitude changes when he trekked up a mountain while stationed at Mt. Lemmon Air Force Base. He reported that he began having ear and hearing issues at that time. The Veteran's service personnel record show he was stationed at Mt. Lemmon Air Force Base, and the Board sees no reason to doubt the credibility of his reports of changes in altitude. 

More importantly, the Veteran reported continuous symptoms beginning in and since service. The Veteran is competent to report symptoms and experiences observable by his senses, including ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board finds him credible in this regard. Tinnitus is considered a chronic disease as an organic disease of the nervous system. See 38 U.S.C. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system'"). Lay statements of continuity of symptomatology may prove service connection for those chronic diseases enumerated in 38 U.S.C. § 1101(3). Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). 

The June 2019 VA examiner opined the Veteran's tinnitus is less likely than not related to service, reasoning that the Veteran had normal hearing when he left the military and no reports of ringing in his ears. The Board finds this opinion lacks probative value, because it relies on the absence of documentation without considering the Veteran's report of ongoing ear symptoms. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007).

There is credible lay evidence of continuity of tinnitus since service and an inadequate medical opinion finding tinnitus is not related to service. The Board finds the lay evidence of continuity of symptomatology holds at least similar probative weight to the medical opinion, so all reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board finds tinnitus is related to service, and service connection is warranted. 

REASONS FOR REMAND

1. Entitlement to service connection for bilateral hearing loss is remanded.

The issue of entitlement to service connection for bilateral hearing loss is remanded to correct a duty to assist error that occurred prior to the rating decision on appeal. 

The Board notes the AOJ made the favorable findings of current hearing loss disability as well as in-service noise exposure. See December 2020 rating decision. The remaining question is whether a nexus can be established between the current disabilities and in-service noise.

The AOJ obtained a June 2019 medical opinion on the question of nexus. The examiner opined the Veteran's hearing loss is less likely than not related to service, reasoning that there was no hearing threshold shift between entrance and separation examinations. The examiner also noted, without explanation, that "today's hearing loss is due to presbycusis."

However, this medical opinion does not provide an adequate rationale. The Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, the examiner does not appear to have considered the Veteran's reports of continuous ear and hearing issues since service, as discussed above, which also renders the opinion in sufficient. See Dalton, 21 Vet. App. at 39. An addendum VA opinion must therefore be obtained.

2. Entitlement to service connection for metastatic melanoma is remanded.

The issue of entitlement to service connection for metastatic melanoma is remanded to correct a duty to assist error that occurred prior to the rating decision on appeal. The AOJ made the favorable findings that the Veteran has a current disability of metastatic melanoma and he was exposed to radiation during his service in the Air Force. However, memoranda from the Department of the Air Force and VA's Director,
 not appear to have considered the Veteran's reports of continuous ear and hearing issues since service, as discussed above, which also renders the opinion in sufficient. See Dalton, 21 Vet. App. at 39. An addendum VA opinion must therefore be obtained.

2. Entitlement to service connection for metastatic melanoma is remanded.

The issue of entitlement to service connection for metastatic melanoma is remanded to correct a duty to assist error that occurred prior to the rating decision on appeal. The AOJ made the favorable findings that the Veteran has a current disability of metastatic melanoma and he was exposed to radiation during his service in the Air Force. However, memoranda from the Department of the Air Force and VA's Director, Compensation Service explain that the Veteran's exact dosage of radiation exposure is unknown, but the potential for significant exposure was very low, less than five rem in one year or 10 rem in a lifetime.

The AOJ obtained a VA medical opinion addressing the Veteran's metastatic melanoma in December 2020. The examiner found the Veteran's metastatic melanoma was less likely than not related to service, and specifically UV radiation in service, given the small amount of time he was in service compared to the many years he would have had UV exposure outside of service. The examiner also noted that UV exposure is less of a risk factor for metastatic melanoma than for other forms of skin cancer, like basal and squamous cell cancers. The Board finds additional rationale would be helpful to clarify this opinion. In particular, the examiner appears to say that UV exposure throughout the Veteran's lifetime could have contributed to the development of melanoma while also stating melanoma is not as clearly associated with UV radiation. Moreover, regarding the Veteran's exposure to radiofrequency radiation, the examiner simply wrote radiofrequency radiation may have played some role.  

The record also includes two opinions from private providers. In October 2020, Dr. JMP noted there are reports of increased cancer risk in radar technicians and it is possible the Veteran's radar exposure played some role in the development of his cancers. Similarly, in January 2020, Dr. GAD wrote that the Veteran has no significant family history of melanoma or other related malignancies and over the years they have reviewed his risk factors for cancer particularly given the aggressive nature of not one but two separate metastatic cancers and taken note of the Veteran's history of exposure to radar in service. Dr. GAD also noted there are several epidemiological reports, preclinical models and theoretical reasons to have concern of a link between this high-energy exposure, DNA mutations, and cancer

Unfortunately, the Board also finds the opinions of Drs. JMP and GAD inadequate, because their conclusions do not definitely attribute the Veteran's cancer to radiation exposure in a way to allow the Board to apply the benefit of the doubt, or at least as likely as not standard. It is also unclear whether Drs. JMP and GAD had information on the amount of radiation exposure the Veteran had in service. The Board finds the VA opinion inadequate, because the examiner did not provide sufficient rationale to explain the conclusions and did not consider all of the relevant evidence of record, specifically the positive opinions from Drs. JMR and GAD. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). When VA undertakes to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In failing to provide an adequate medical opinion, the AOJ did not satisfy its duty to assist and remand is needed to obtain an adequate opinion.

3. Entitlement to service connection for prostate cancer is remanded.

The issue of entitlement to service connection for prostate cancer is also remanded to correct a duty to assist error that occurred prior to the rating decision on appeal.  

The AOJ made the favorable findings that the Veteran has a current disability of prostate cancer and that he was exposed to radiation during his service in the Air Force. However, as noted, memoranda from the Department of the Air Force and VA's Director, Compensation Service explain that the Veteran's exact dosage of radiation exposure is unknown but the potential for significant exposure was very low, less than five rem in one year or 10 rem in a lifetime.

The AOJ did not obtain a VA medical opinion addressing the Veteran's prostate cancer, and the Board finds an examination should have been obtained.

VA is obligated to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, or with another service-connected disability, but (4) there is insufficient
 the Veteran's exact dosage of radiation exposure is unknown but the potential for significant exposure was very low, less than five rem in one year or 10 rem in a lifetime.

The AOJ did not obtain a VA medical opinion addressing the Veteran's prostate cancer, and the Board finds an examination should have been obtained.

VA is obligated to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, or with another service-connected disability, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

In this regard, the first and second McLendon elements are met by the favorable findings rendered by the AOJ on current disability and in-service radiation exposure. The third and fourth elements are also met. The January 2020 and October 2020 private medical opinions are supportive of a nexus between the Veteran's prostate cancer and radiation exposure in service but are insufficient to establish service connection. As discussed above, these opinions do not sufficiently state that the Veteran's cancer is due to radiation exposure to compare with the as least as likely as not standard. As the evidence is insufficient to make an informed decision on the claim, a remand is necessary for the AOJ to correct the duty to assist error and obtain a VA examination and medical opinion.

The matters are REMANDED for the following action:

1. Obtain an addendum opinion with an appropriate clinician to determine whether it is as likely as not (50/50 probability or greater) that bilateral hearing loss is related to conceded in-service noise exposure, including whether hearing loss began in service or was manifest to a compensable degree within one year of discharge.

The examiner is asked to review the record prior to rendering an opinion and specifically consider the Veteran's statements of changes in altitude and onset of ear and hearing problems in service and treatise evidence of record.

The examiner is reminded that the absence of documented hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran's lay statements as to onset and continuity of symptoms must be considered and weighed in making the determination as to whether a nexus exists between the Veteran's hearing loss disability and his military service.

2. Obtain a medical opinion from an appropriately qualified clinician to the determine the nature and etiology of the Veteran's melanoma.

The clinician should review the claims file and provide opinions as the whether the Veteran's melanoma is at least as likely as not related to active service, to include conceded exposure to radar radiation and UV radiation. The clinician should consider all relevant lay and medical evidence, including the positive private medical opinions of record and any associated medical treatise evidence. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the clinician should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge.

3. Obtain a medical opinion from an appropriately qualified clinician to the determine the nature and etiology of the Veteran's prostate cancer.

The clinician should review the claims file and provide opinions as to whether the Veteran's prostate cancer is at least as likely as not related to active service, to include conceded exposure to radar radiation. The clinician should consider all relevant lay and medical evidence, including the positive private medical opinions of record and any associated medical treatise evidence. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the clinician should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge.

 

 

A. P. Armstrong

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Comninos, Georgio

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.