Citation Nr: 0313722 Decision Date: 06/24/03 Archive Date: 06/30/03 DOCKET NO. 99-13 813 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for a psychiatric disorder. 3. Whether new and material evidence has been submitted to reopen a claim of service connection for a back disability. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Neil T. Werner, Counsel INTRODUCTION The veteran served on active duty from June 1949 to October 1952. The veteran also had a subsequent period of service with a reserve component from April 1956 to April 1959. In November 1996, the Board of Veterans' Appeals (Board) denied service connection for bilateral hearing loss and for a psychiatric disorder as well as the veteran's application to reopen his claim of service connection for a back disorder. The November 1996 Board decision is final and these claims may be reopened only on the filing of new and material evidence. 38 U.S.C.A. §§ 5108, 7104. This matter originally came before the Board on appeal from an April 1999 rating decision by the Huntington, West Virginia, RO that denied service connection for bilateral hearing loss and a psychiatric disorder as well as the veteran's application to reopen the claim of service connection for a back disorder. Initially, the Board notes that, irrespective of the RO's actions in April 1999, because all these claims were the subject of an earlier final decision, the claims may only be addressed on the merits only if the veteran submitted new and material evidence. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the Board recharacterized the issues on appeal as claims to reopen. In January 2001, the Board found that the veteran had not submitted new and material evidence since the final November 1996 Board decision and denied his claims to reopen. Thereafter, the veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2001, VA General Counsel filed a motion to vacate the Board's January 2001 decision which motion the veteran did not oppose. By a September 2001 order, the Court vacated the Board's decision in accordance with the motion and remanded the case to the Board for further action. FINDINGS OF FACT 1. In November 1996, the Board denied the veteran's application to reopen the claim for service connection for a back disorder as well as denied the claim of service connection for bilateral hearing loss and a psychiatric disorder. 2. The November 1996 Board decision is final. 3. As to the applications to reopen claims for service connection for bilateral hearing loss and a psychiatric disorder, the evidence received since the November 1996 Board decision is new and it bears directly and substantially upon the specific matters under consideration, and is so significant that it must be considered to decide fairly the merits of the veteran's claims of service connection for bilateral hearing loss as well as secondary service connection for a psychiatric disorder. 4. As to the application to reopen the claim for service connection for a back disability, the evidence received since the November 1996 Board decision is either cumulative or redundant and, when considered with all of the evidence of record, it has no significant effect upon the facts previously considered. 5. As to the claim for service connection for bilateral hearing loss, the record includes uncontradicted medical opinion evidence indicating that current bilateral hearing loss was brought about by military service. 6. As to the claim for service connection a psychiatric disorder, the record includes uncontradicted medical opinion evidence indicating that current psychiatric disorders, diagnosed as depression and anxiety disorders, were brought about in part by the veteran's now service connected bilateral hearing loss. CONCLUSIONS OF LAW 1. As to the applications to reopen claims for service connection for bilateral hearing loss and a psychiatric disorder, the veteran has submitted new and material evidence sufficient to reopen previously denied claims. 38 U.S.C.A. §§ 1110, 1131, 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2001); 38 C.F.R. §§ 3.303, 3.310, 20.1100 (2002). 2. As to the application to reopen the claim for service connection for a back disability, the evidence received since the November 1996 Board decision, which denied an application to reopen a claim of service connection for a back disability is not new and material and the veteran's claim for that benefit is not reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2001); 38 C.F.R. §§ 3.303, 20.1100 (2002). 3. Resolving all reasonable doubt in the veteran's favor, bilateral hearing loss was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2002). 4. Resolving all reasonable doubt in the veteran's favor, current psychiatric disorders, diagnosed as depression and anxiety disorders, were caused in part by service connected hearing loss. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Board observes that recently enacted law and its implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002); 38 C.F.R. §§ 3.102, 3.159(c)-(d) (2002). The new law and regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b) (2002). In this case, a review of the record on appeal shows VA's two-part duty has been fulfilled to the extent possible. First, a review of the record on appeal shows VA notified the veteran of evidence and information necessary to substantiate his claims. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Second, a review of the record on appeal shows that VA, on a number of occasions, notified the veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. Id. Specifically, as to VA's duty to notify the veteran of evidence and information necessary to substantiate his claims, a review of the record on appeal shows that the veteran was notified of this information, including notice of the VCAA, by the RO, the Board and/or the Court, by the discussion in a rating decisions, a statement of the case, in RO and Board letters, and/or in Court pleadings. See RO decision dated in April 1999; statement of the case issued in June 1999; RO letter to the veteran dated in April 1999; Court pleadings dated in July and September 2001; and Board letters dated in January 2002, May 2002, and September 2002. In the above documents, the veteran was specifically informed of the laws and regulations governing his applications to reopen and the VCAA. Therefore, because the veteran has been provided notice of the laws governing his applications to reopen as well as notice of the VCAA, the Board finds that VA has no outstanding duty to inform the veteran of the information necessary to substantiate his claims. Next, as to VAs' duty to notify the veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, a review of the record on appeal shows that VA provided the veteran with this notice. See RO letters to the veteran dated in April 1999; Court pleadings dated in July and September 2001; and Board letters dated in January 2002, May 2002, and September 2002. The Board recognizes that VA must make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2002). Here, a review of the record on appeal shows the veteran was given notice that he needed to file with the RO the name and address of all places that he received treatment for his claimed disabilities to help show that he had filed new and material evidence to reopen his claims. See RO letters to the veteran dated in April 1999; Court pleadings dated in July and September 2001; and Board letters dated in January 2002, May 2002, and September 2002. Moreover, a review of the record on appeal shows that the veteran filed, or the RO obtained, all identified and available records. Therefore, the Board concludes that the claims' file contains all of the veteran's available and identified medical records. In addition, in reply to the VA's notice to the veteran that he needed to file any evidence he had that could substantiate his claims, the veteran and his representative filed written arguments in support of the veteran's claims and the veteran and his wife testified at a video hearing before the undersigned. Accordingly, because there is no indication that there is additional outstanding evidence that is necessary for a fair adjudication of these issues and because VA has provided the veteran with the requisite VCAA notice, adjudication of the claims at this juncture may go forward because it poses no risk of prejudice to the veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. The Merits a. Applications to Reopen The veteran contends that he has a back disability and bilateral hearing loss that were incurred in service. He also claims he has a psychiatric disorder secondary to his back and hearing loss disorders. In November 1996, the Board denied an application to reopen the claim of service connection for a back disorder as well as denied the veteran's claims of service connection for defective hearing and an acquired psychiatric disorder on a secondary bases. At that time, the Board denied the claims because the evidence did not show the disabilities were related to military service, arthritis of the back or sensorineural hearing loss manifested itself to a compensable degree within one year of the veteran's separation from military service, or that the veteran's psychiatric disorder was caused or aggravated by an already service connected disability. As a result of the previous denial, the veteran's current claims of service connection may now be considered only if new and material evidence has been submitted since the time of the prior final decision. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2001); Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "New and material evidence" is defined by regulation as follows: New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001) (Emphasis added). (The Board notes that, while the above definition of new and material has recently changed, these changes only apply to claims filed after August 29, 2001, and have no impact on the current appeal which arose from a claim filed in October 1998. See 66 Fed. Reg. 45620 to 45632 (August 29, 2001) (to be codified as amended at 38 C.F.R. § 3.156). i. The Facts Evidence available to the Board at the time of the final November 1996 decision, included a DD-214, service medical records, and morning reports. While the veteran's DD-214 showed he served as a radio operator, the other records, which included morning reports from November 1949 as well as a September 1952 separation examination, were negative for complaints, diagnoses, or treatment for a back disability, bilateral hearing loss, or a psychiatric disorder. Specifically, while November 1949 morning reports show the veteran, on two occasions, reported for sick call, the nature of his illness was not recorded at that time. And, the September 1952 separation examination, noted that the veteran's spine and psychiatric examination were normal and hearing was 15/15 on whispered, as well as spoken, voice testing. The record at the time of the November 1996 Board decision also contained a March 1956 reserve component enlistment examination, private treatment records and employment health records, dated from December 1952 to May 1991, VA treatment records, dated from June 1991 to October 1993, a March 1994 decision from the Social Security Administration (SSA), testimony from May 1992 and June 1996 personal hearings, and the veteran's, his mother's, and his wife's written statements to the RO. As to the veteran's back disability, medical records show that the veteran sought treatment for back pain as early as 1955. See chronological record of medical care dated in November 1955. Thereafter, the record shows his periodic complaints and/or treatment for back pain. See chronological record of medical care dated in December 1956 and January 1957; February 1980 treatment records from Oak Hill Hospital; May 1991 letter from a nurse of a Dr. Bernard Collins; February 1961 letter from B.F. Puckett, M.D.; and VA treatment record dated in August 1991. The veteran's back disability was variously diagnosed as possible back strain (see chronological record of medical care dated in November 1955 and December 1956) and, beginning in 1980, arthritis (see February 1980 treatment records from Oak Hill Hospital; VA treatment records dated in August 1991). Likewise, the March 1994 SSA decision reported that the veteran had arthritis of the entire spine. As to the veteran's bilateral hearing loss, the medical records show he was first diagnosed as having sensorineural hearing loss in November 1982. Subsequent medical reports in the 1990's continue to show a diagnosis of sensorineural hearing loss. With respect to the veteran's psychiatric disorder, medical records, beginning in September 1982, show the veteran's complaints and/or treatment for psychiatric disorders variously diagnosed as anxiety, depression, and/or dysthymia. See private treatment records from Appalachian Regional Hospitals dated in September 1982; N. Patel, M.D., dated from September 1982 to November 1982; M. Khalid Hasan, dated in September and October 1982; records from the veteran's employment dated in October 1982; chronological record of medical care dated in December 1956. As to the origins or etiology of the veteran's back disability, in February 1961, Dr. Puckett reported that the veteran came to him complaining of "recurrent back troubles which dated back to his time of service in the army." Similarly, the veteran's wife and his mother, in March and April 1961 statements, reported, in substance, that the veteran injured his back while in military service and had had trouble with it since that time. As to the veteran's hearing loss, a November 1992 VA treatment record included the veteran's claim that he had a history of exposure to 90- mm shellfire while in the National Guard. And, as to the veteran's psychiatric disorder, the December 1956 chronological record of medical care reported that the veteran had dysthymia because of his back. (Interestingly, the veteran's March 1956 reserve component enlistment examination was negative for complaints, diagnoses, or treatment for any of the claimed disabilities.) At the veteran's May 1992 and June 1996 personal hearings, he testified that he injured his back while unloading an airplane at Keesler Air Force Base, was treated with heat, and that he first sought treatment for back problems after service in February 1953. He also testified that he had re- injured his back in the early 1950's, that he now had arthritis of the back, and that he was retired from the postal service, in part, because of his back. Evidence received since the November 1996 Board denial consists of a September 1998 letter from Ahmed D. Faheem, M.D., the veteran's testimony at a March 2000 video hearing, written statements from the veteran, and March 2003 letters from Craig N. Bash, M.D., an Associate Professor of Radiology and Nuclear Medicine, and Naomi Wicentowski, M.A., CCC-A, an audiologist. In the September 1998 letter, Dr. Faheem stated he treated the veteran for a major affective illness (depression) and for a recurrent and generalized anxiety disorder. Dr. Faheem went on to say that: [t]he [veteran] developed deafness in the right ear while he was in the Air Force. He also injured his back while he was in the [s]ervice . . . The [veteran] has had significant problems ever since he came out of the [s]ervice and has had episodes of recurrent depression and anxiety. [The veteran] has continued to have major problems with his back, which has resulted in him having chronic pain and inability to do the type of things that he could in the past . . . [The veteran] has continued to have major problems with his back, his leg, and his hearing impairment which have directly contributed to his psychiatric difficulties including depression and anxiety. Based upon my contact with [the veteran] his course of treatment at [VA], I have come to the conclusion that his depression and anxiety are related to his [s]ervice connected disability of his back and his ears with decreased-hearing . . . At the March 2000 video hearings, the veteran read, in part, the contents of the above September 1998 letter from Dr. Faheem and opined that it was new and material evidence as to all of the issues on appeals. The veteran's wife testified that she met the veteran immediately after his separation from military service and, at that time, he complained of both chronic back pain and hearing loss. Moreover, she reported that, at that time, she could see that he had problems with his back and hearing. Next, she reported that the veteran, because of his need for a job, did not report his back problems to his employer. However, because that job entailed shoveling metals into a furnace, his back problem became worse shortly after taking the job. She stated that because of their continued need for money, the veteran neither complained of the problem nor sought medical attention. She reported that she did not know the veteran at that time he injured his back. In addition, she testified that in 1961 the veteran's mother (know deceased) and a Dr. Puckett, as well as herself, wrote VA and verified that the veteran had a current back problem and that it was due to his military service. Lastly, she testified that all of her and the veteran's attempts to obtain statements from men who had served with the veteran had met with failure. In 1999, the veteran submitted statements reasserting the contentions made during his March 2000 Board video hearing. In these statements, the veteran claimed he had a back disorder and hearing loss that were incurred while in military service. He also stated that he had submitted new and material evidence to reopen his claims of service connection. In his March 2003 letter, Dr. Bash reported that he had reviewed the veteran's medical records, which records included service medical records and post service medical records, for the purpose of providing a medical opinion concerning the veteran's "spine problems" and concluded that it was his ". . . opinion that this patient's in- service spine injury caused him to develop his current lumbar degenerative disc/facet disease and associated neurological problems." In her March 2003 letter, Ms. Wicentowski reported that she had been asked to review the audiological records of the veteran for the purpose of determining whether his hearing loss could be attributable to noise exposure sustained while he was in military service and thereafter opined that [i]t is well documented in the medical literature that with sufficiently long exposure to high sound levels, hearing loss result. Very rarely will the affects of noise exposure manifest themselves at the time of the 'damage.' Rather, hearing loss due to noise exposure typically becomes apparent twenty or more years after the exposure takes place. [The veteran] served in the U.S. Air Force from June 1949 to October 1952, as a radio operator. From April 1956 to April 1959, he served in the Army National Guard as a tank commander. In both rolls, [the veteran] was exposed to loud noises. The audiological assessment performed on 11/5/82 at the Raleigh Speech Hearing Center reveals mild to moderately-severe high frequency hearing loss. The hearing loss configuration documented in that report is a typical loss associated with noise exposure, and is sufficiently after service for a noise-induced hearing loss to have manifested itself. Therefore, it is my opinion that it is more likely than not that [the veteran's] noise exposure during his military service is the cause of his hearing loss. ii. Applications to Reopen Claims for Service Connection for Bilateral Hearing loss and a Psychiatric Disorder Initially, the Board, using the above guidelines, will look at the veteran's applications to reopen claims for service connection for bilateral hearing loss and a psychiatric disorder. In this regard, the Board notes that the additional evidence associated with the claims folder since the November 1996 Board denial includes the March 2003 letter from Ms. Wicentowski. Her medical opinion, for the first time, provides VA with medical evidence linking the veteran's current bilateral hearing loss to his military service. The Board also finds that this medical opinion, in view of the September 1998 letter from Dr. Faheem in which he opined that the veteran's current psychiatric disorders were caused, at least in part, by the veteran's hearing loss, for the first time, provides credibility to the veteran's earlier claim that his current psychiatric disorders were brought about by a disability he believed he should be granted service connection - hearing loss. Accordingly, the Board finds that the above evidence is new and material as defined by regulation. In other words, it bears directly and substantially upon the issues at hand, especially as to the relationship between currently diagnosed hearing loss and military service and the relationship between currently diagnosed psychiatric disabilities and an already service connected disability (see 38 U.S.C.A §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2002)), and is neither duplicative nor cumulative of previously submitted evidence. Accordingly, the Board concludes that the veteran has submitted new and material evidence to reopen his claims of service connection for bilateral hearing loss and for his psychiatric disorders. iii. Application to Reopen the Claim for Service Connection for a Back Disability As to the veteran's application to reopen the claim for service connection for a back disability, the Board finds that neither the September 1998 statement from Dr. Faheem nor the March 2003 letter Dr. Bash are new evidence. The statements are not new because they are cumulative of evidence previously of record in that they are of the same substance as a February 1961 letter from B. Puckett, M.D. (which was previously of record at the time of the final 1996 Board decision). It is clear that the September 1998 statement from Dr. Faheem and the March 2003 letter from Dr. Bash are simply recitation of the lay history reported by the veteran even though Dr. Bash reported that he had reviewed the veteran's service medical records. The Board reaches this conclusion because the actual evidence from service does not show either evidence of a back injury while in military service or an evidence of a chronic back disorder while in military service. Therefore, because there opinions are based on an inaccurate factual premise, they have no probative value. Lee v. Brown, 10 Vet. App. 336 (1997); Reonal v. Brown, 5 Vet. App. 458 (1993). A mere recitation of a veteran's lay history cannot constitute material evidence to reopen the veteran's claim for service connection. LeShore v. Brown, 8 Vet. App. 406 (1995). The Board also finds that the additional statements submitted in 1999 as well as the March 2000 hearing testimony are also not new evidence to reopen the veteran's claim of service connection for a back disorder. The veteran's additional written statements and 2000 hearing testimony are reiterations of his previously considered assertions, and as such are not new evidence. Reid v. Derwinski, 2 Vet. App. 312 (1992). Moreover, his assertions that he has a back disorder which had its onset in service is not new evidence to reopen the claim because, as a layman, he has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Similarly, the veteran's wife testimony cannot act as new evidence. While the Board acknowledges that lay witnesses are competent under the law to describe symptoms they have seen or experienced (see King v. Brown, 5 Vet. App. 19, 21 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Caldwell v. Derwinski, 1 Vet. App. 466 (1991)), she conceded that she first met the veteran after his separation from military service. Therefore, her testimony as to the veteran's alleged in-service back problems is once again a mere recitation of the history provided by the veteran. Given the above, the Board concludes that new evidence has not been submitted to reopen the claim for service connection for a back disorder. Thus, the November 1996 Board decision remains final as to this issue. Lastly, the Board notes that the RO applied the "materiality" test adopted by the Court in the case of Colvin, supra, in adjudicating the veteran's applications to reopen. See April 1999 RO decision and June 1999 statement of the case. However, the Court in Vargas-Gonzalez v. West, 12 Vet. App. 63 (1998), stated as follows: [t]he Federal Circuit in Hodge dealt with the test for determining whether newly presented evidence is material, but not with the test for determining whether such evidence is new, for purposes of reopening previously and finally disallowed claims. Hodge, 155 F.3d at 1360 . . . More specifically, the Federal Circuit clearly implied in Hodge that a decision concerning the materiality of evidence submitted to reopen follows, and is separate from, a decision as to whether the evidence is new. Hodge, 155 F.3d at 1360 . . . Where, as in this case, the Board has determined that newly presented evidence is cumulative of previously considered evidence and thus is not "new" for purposes of reopening a claim, that should end the Board's analysis of whether the evidence is "new and material". See Smith (Russell) v. West, __ Vet. App. __, __, No. 95-638, slip op. at 5 (April 7, 1999). Therefore, because the Board has found that the veteran has failed to submit new evidence to reopen his claim of service connection for a back disorder, a remand is not required to avoid prejudice to the veteran. 38 C.F.R. § 19.29 (2002); Vargas-Gonzalez, supra; Bernard v. Brown, 4 Vet. App. 384, 393 (1993); b. Claims for Service Connection for Hearing Loss and Psychiatric Disorders As to the merits of the claims of service connection for bilateral hearing loss and psychiatric disorders, the veteran asserts that current hearing loss was caused by exposure to loud noses, first as a radio operator and later from cannon fire while serving as a tank commander with a reserve component and that his current psychiatric disorders were caused, at least in part, by hearing problems. It is also requested that the veteran be afforded the benefit of the doubt. In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is also payable when service-connected disability has aggravated a non- service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In hearing loss cases, regulations also provide that, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2002). Next, the Board notes that it is our responsibility to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). In so doing, the Board may accept one medical opinion and reject others. Id. At the same time, we are mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans, supra; Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, we must determine the weight to be accorded the various items of evidence in this case based on the quality of the evidence and not necessarily on its quantity or source. As to the veteran's claim for bilateral hearing loss, the Board notes, as reported above, that the veteran claims that his current bilateral hearing loss was brought about by exposure to loud noses, first as a radio operator in the Air Force and later from cannon fire while serving as a tank commander with a reserve component. In addition, available service and reserve service records show that the veteran, while on active duty served as a radio operator and, while in a reserve component from April 1956 to April 1959, served as a Tank Commander with a West Virginia Army National Guard unit. See DD-214; NGB Form 22. As noted above, because lay witnesses are competent under the law to describe symptoms they have seen or experienced and because the record contains evidence verifying the veteran's in-service duties as a radio operator, the Board finds that the record on appeal contains credible evidence of the veteran being exposed to acoustic trauma from radio noise while in military service. See King v. Brown, 5 Vet. App. 19, 21 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Next, a review of the record on appeal shows the veteran first being diagnosed with sensorineural hearing loss beginning in November 1982. See November 1982 treatment record from the Raleigh Speech and Hearing Center. Thereafter, VA treatment records show the veteran's continued complaints and/or treatment for sensorineural hearing loss with his being diagnosed with bilateral hearing loss as defined by VA at 38 C.F.R. § 3.385 beginning in March 1994. See VA treatment record dated in November 1992, March 1993, and April 1993; VA audiological examinations dated in March 1993. The Board next notes that the post-service record includes a medical opinion directly linking the veteran's bilateral hearing loss to the nose exposure he experienced while in military service. Specifically, in March 2003. Ms. Wicentowski reported that ". . . it is [her] opinion that it is more likely than not that [the veteran's] noise exposure during his military service is the cause of his hearing loss." Accordingly, the Board finds that the record on appeal contains proof that the veteran served as a radio operator, credible statements by the veteran that his job as a radio operator exposed him to loud noise (see King v. Brown, 5 Vet. App. 19, 21 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Caldwell v. Derwinski, 1 Vet. App. 466 (1991), post-service records showing the veteran being diagnosed with bilateral hearing loss as defined by VA starting in March 1993, and a medical opinion linking the veteran's current bilateral hearing loss to his military service. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under such circumstances, and granting the veteran the benefit of any doubt in this matter, the Board concludes that the evidence supports a grant of service connection for bilateral hearing loss. Colette v. Brown, 82 F.2d 389 (Fed. Cir. 1996); Hensley v. Brown, 5 Vet. App. 155 (1993); 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3,385 (2002). Lastly, as to the veteran's claim of service connection for a psychiatric disorder, medical records, beginning in September 1982, show the veteran's complaints and/or treatment for psychiatric disorders variously diagnosed as anxiety, depression, and/or dysthymia. See private treatment records from Appalachian Regional Hospitals dated in September 1982; N. Patel, M.D., dated from September 1982 to November 1982; M. Khalid Hasan, dated in September and October 1982; records from the veteran's employment dated in October 1982; and a September 1998 letter from Dr. Faheem. In addition, Dr. Faheem provided a medical opinion directly linking at least one of the veteran's current psychiatric disabilities, depression and anxiety disorders, to his now service connected bilateral hearing loss. Specifically, Dr. Faheem said Based upon my contact with [the veteran] his course of treatment at [VA], I have come to the conclusion that his depression and anxiety are related to his [s]ervice connected disability of his back and his ears with decreased-hearing . . . This opinion stands uncontradicted by any other evidence of record and shows that the veteran's psychiatric disorder is at least, in part, due to his now service-connected bilateral hearing loss. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that, under such circumstances, and granting the veteran the benefit of any doubt in this matter, the Board concludes that the evidence supports a grant of service connection for depression and anxiety disorders secondary to service connected hearing loss. Allen v. Brown, 7 Vet. App. 439 (1995); 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2002). ORDER Service connection for bilateral hearing loss is granted. Service connection for depression and anxiety disorders are granted. New and material evidence having not been submitted to reopen a claim of service connection for a back disorder, the appeal is denied. ______________________________________________ K. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.