Citation Nr: 1126034 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 08-07 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1953 to October 1955. These matters initially came before the Board of Veterans' Appeals (Board) from July 2007and January 2009 rating decisions of the Department of Veterans' Affairs (VA) Regional Offices (ROs) in Winston-Salem, North Carolina and Cleveland, Ohio, respectively. In these decisions, the ROs denied the Veteran's petitions to reopen claims for service connection for bilateral hearing loss and tinnitus as new and material evidence had not been submitted. Jurisdiction over the Veteran's claims has remained with the RO in Winston-Salem, North Carolina. In November 2009, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). In November 2009, the Board granted the Veteran's petitions to reopen the claims for service connection for bilateral hearing loss and tinnitus and remanded the underlying claims for further development. In April 2011, the Board again remanded these matters for further development. FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss is the result of an in-service injury. 2. The Veteran experienced tinnitus in service and there is post-service continuity of symptomatology demonstrating a nexus between the Veteran's current tinnitus and the in-service tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2010). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). As the Board is granting the claims for service connection for bilateral hearing loss and tinnitus, the claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Medical records, including an April 2011 VA examination report, reveal that the Veteran has been diagnosed as having bilateral hearing loss as defined by VA and that he has reported tinnitus. See 38 C.F.R. § 3.385. Thus, current hearing loss and tinnitus have been demonstrated. The Veteran has reported on several occasions, including in an October 1988 statement (VA Form 21-4138) and a February 2011 statement, that he was exposed to loud noises in service without the use of hearing protection while serving as a crane operator and while participating in weapons training. He reportedly engaged in hunting following service, but he has not reported and the evidence does not reflect any significant post-service occupational or recreational noise exposure. The Veteran's DD 214 indicates that he served with the 587th Engineer Company (Field Maintenance), that his military occupational specialty (MOS) was an aerial gunner, and that he received training as a crane shovel operator. The Veteran is competent to report in-service noise exposure. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Furthermore, there is nothing to explicitly contradict his reports and they are consistent with the evidence of record and the circumstances of his service. Therefore, the Board finds that his reports are also credible and in-service acoustic trauma is conceded. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). Thus, there is evidence of current hearing disabilities and in-service noise exposure. There are conflicting medical opinions concerning the etiology of the Veteran's current bilateral hearing loss and tinnitus. The Board, therefore, must weigh the credibility and probative value of these opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In a February 1989 letter, William M. Satterwhite, Jr., M.D. stated that he an audiogram in June 1983 had revealed that the Veteran had severe bilateral high frequency hearing loss. He reported that at that time, he had felt that noise exposure played a significant role in the Veteran's hearing loss. No further explanation or reasoning was provided. A March 2007 examination report from Ronald Shealy, M.D. indicates that the Veteran was diagnosed as having high frequency sensorineural hearing loss that was probably noise induced. No further explanation or reasoning was provided. In an April 2007 letter, Dr. Shealy opined that the Veteran's severe bilateral sensorineural hearing loss represented the type of hearing loss that would come from exposure to excessive noise in the military. No further explanation or reasoning was provided. In an October 2008 addendum to a May 2008 VA audiology consultation note, a VA audiologist opined that the Veteran's tinnitus was likely ("likely as not") due to military noise exposure. No further explanation or reasoning was provided. An April 2010 VA examination report includes an opinion that it was not likely ("less likely as not") that the Veteran's hearing loss and tinnitus were attributable to noise exposure in service. The audiologist who provided the opinion reasoned that the Veteran began wearing a hearing aide in the right ear in the mid 1990s, which was approximately 40 years following his separation from service. There was no other documentation of chronicity or continuity of care regarding hearing loss or tinnitus prior to that time. A review of the Veteran's service treatment records did not reveal any evidence of complaints of or treatment for hearing loss or tinnitus during service or at the time of separation and there was no other medical evidence or "nexus event" that would support a conclusion that hearing loss or tinnitus were attributable to military service. Furthermore, the effects of presbycusis could not be ruled out. An April 2011 VA examination report includes an opinion that the etiology of the Veteran's hearing loss and tinnitus could not be resolved without resort to mere speculation. The examiner observed that there was no medical evidence of any complaints of or treatment for hearing loss or tinnitus during service or at the time of separation. The length of service as a crane operator during service, the time-weighted averages and noise exposure levels associated with the operation of a crane, the efforts at noise control, and the appropriate use of hearing protection were all unknown. Also, there was no evidence of chronicity or continuity of care and the Veteran was not treated for hearing problems after service until 1983. The audiologist who provided the April 2011 opinion acknowledged Dr. Shealy's April 2007 opinion that the Veteran's hearing loss was consistent with in-service noise exposure, but reasoned that it did not specifically address whether the hearing loss was attributable to noise exposure from a crane. While the Veteran's hearing loss and tinnitus may have been indicative of a noise-induced permanent threshold shift, the probability that they were associated with limited-time crane operation remained a matter of mere speculation without further objective information. The February 1989 and March 2007 opinions are of very little, if any, probative weight because while they reflect that the Veteran's hearing loss was likely noise induced, they did not specifically address whether it was related to service-related noise exposure. Dr. Shealy's April 2007 opinion is of limited probative weight because it is unaccompanied by any specific explanation or reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The April 2010 opinion is also of limited probative weight because it is in part based on an inaccurate history. Although the examiner reasoned that there was essentially no evidence of treatment for hearing problems prior to the time that the Veteran began wearing a hearing aid in his right ear in the mid 1990s, the evidence reflects that the Veteran was treated for hearing problems (i.e. hearing loss and tinnitus) as early as 1983. See Boggs v. West, 11 Vet. App. 334, 345 (1998); see also Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The April 2011 opinion that the etiology of the Veteran's hearing loss and tinnitus could not be determined without resorting to mere speculation is adequate to the extent that it was accompanied by a specific rationale which addressed why a definitive conclusion could not be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the examiner stated that he could not provide an opinion and his statement weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Although Dr. Shealy's April 2007 opinion has limited probative value because it is unaccompanied by any explicit explanation or reasoning, it was apparently based upon the Veteran's reported history of in-service noise exposure and at least supports a conclusion that his current bilateral hearing loss is related to that exposure. Furthermore, there is no other more probative opinion that the hearing loss is not related to service. The evidence is in at least equipoise on the question of whether the current bilateral hearing loss is related to in-service noise exposure. Resolving reasonable doubt in the Veteran's favor, service connection for the currently diagnosed bilateral hearing loss is granted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. Tinnitus There is evidence of in-service tinnitus and of a continuity of symptomatology linking those symptoms to the current tinnitus. In his February 2011 statement, the Veteran reported that he began to experience tinnitus in service while operating a crane and participating in weapons training without the use of hearing protection and that the tinnitus continued following service. Also, a May 2008 addendum to the May 2008 VA audiology consultation note indicates that he reported that he had experienced constant tinnitus since 1955. The Veteran is competent to report tinnitus as well as a continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Although there is no contemporaneous medical evidence of tinnitus in service or in the years immediately following service, there is no affirmative evidence to contradict his reports and they are otherwise consistent with the evidence of record. The Board therefore finds that his reports are credible. As explained above, the April 2010 opinion as to the etiology of the Veteran's tinnitus is entitled to limited probative weight because it is, at least in part, based on an inaccurate history. See Boggs, 11 Vet. App. at 345; Kightly, 6 Vet. App. at 205-06; Reonal, 5 Vet. App. at 460-61. Furthermore, the examiner did not consider the Veteran's report of tinnitus in service and in the years since that time. A medical opinion is inadequate if it does not take into account the Veteran's reports of his symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Also, while the April 2011 opinion is adequate, it weighs neither for nor against the Veteran's claim. See Fagan, 573 F.3d at 1282; Jones, 23 Vet. App. at 382. Although the October 2008 opinion is of limited probative weight because it is unaccompanied by any explicit explanation or reasoning, it at least supports a conclusion that the current tinnitus is related to noise exposure in service. As the weight of the evidence reflects that the Veteran experienced tinnitus in service, he has been diagnosed as having current tinnitus, and there has been a continuity of symptomatology since service, and resolving reasonable doubt in favor of the Veteran, the criteria for service connection for the currently diagnosed tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs