Citation Nr: 1237625 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 10-24 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 1966 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDINGS OF FACT 1. The Veteran was exposed to loud noise (acoustic trauma) while in service. 2. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes. 3. Symptoms of tinnitus have been continuous since service separation. 4. The Veteran's current bilateral hearing loss and tinnitus are etiologically related to exposure to acoustic trauma in service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2011). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The claims of service connection for bilateral hearing loss and tinnitus have been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309. In the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Bilateral Hearing Loss and Tinnitus In October 2009, the Veteran filed a claim of service connection for bilateral hearing loss and tinnitus, contending that bilateral hearing loss and tinnitus began in service. The Veteran asserts that he has current bilateral hearing loss and tinnitus disabilities that are the result of noise exposure from small arms fire, artillery, and mortars during service. Pursuant to the VA claim, the Veteran has also reported that his bilateral hearing loss and tinnitus symptoms have been continuous since service separation. First addressing the question of current disability, the Board finds that the Veteran has bilateral hearing loss disability. A December 2009 VA audiological examination and May 2010 private audiological examination results establish hearing loss "disability" in each ear as defined in 38 C.F.R. § 3.385. In December 2009, on VA audiological examination, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 30, 25, 25, 45, and 50 decibels, respectively, with an average puretone threshold of 36.25 decibels. The speech recognition score for the right ear was 96 percent. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 35, 30, 15, 50, and 50 decibels, respectively, with an average puretone threshold of 36.25 decibels. The speech recognition score for the left ear was 100 percent. In May 2010, on private audiological examination, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 20, 25, 30, 55, and 65, respectively, with an average puretone threshold of 43.75 decibels. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 30, 30, 35, 60, and 65 decibels, respectively, with an average puretone threshold of 47.50 decibels. The May 2010 private audiogram results were provided in graph form, and the Board has depicted the numerical results from the graphs as shown above. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); see also Savage v. Shinseki, 24 Vet. App. 259 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record). After a review of all the evidence, lay and medical, the Board also finds that the Veteran has a current disability of tinnitus. In Charles v. Principi, 16 Vet. App. 370 (2002), the Court determined that tinnitus is the type of disorder associated with symptoms capable of lay observation. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (stating that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition). On the question of in-service injury or disease, the Board finds that the Veteran is shown to have been exposed to loud noise (acoustic trauma) to both ears in service. The Veteran's military occupational specialty was light infantryman. In addition, as the Veteran received a Purple Heart, the Board finds that the Veteran engaged in combat. In October 2009, the Veteran stated he was exposed to loud noises associated with machine guns and mortars in service. In December 2009, the Veteran stated he was exposed to loud noises associated with small arms fire, artillery, and mortars in service. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Because the Board has found that the Veteran engaged in combat, the Board accepts as credible the Veteran's assertion of exposure to acoustic trauma in service as consistent with the duties and circumstances of his service. See 38 U.S.C.A. § 1154(b). On service pre-induction audiological examination, in November 1965, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 20, 15, 15, 10, and 5 decibels, respectively. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 20, 10, 15, 15, and 0 decibels, respectively. On service separation audiological examination, in August 1968, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 25, 25, 10, 10, and 10 decibels, respectively. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 25, 25, 10, 10, and 10 decibels, respectively. It should be noted that for the November 1965 service pre-induction audiological examination, puretone thresholds have been converted from ASA units to ISO units. The 1000 and 2000 Hz thresholds for the right and left ears in this Veteran's case at service separation were not within the normal hearing range of 20 or less decibels, so had shifted (worsened) during service. According to the Court's precedential decision in Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110- 11 (Stephen A. Schroeder et al., ed., 1988)), such service treatment record audiometric test results in this Veteran's case show "hearing loss" at service separation. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. Although the Veteran was not specifically diagnosed with hearing loss of either ear in active service, the Board notes that the absence of service treatment records showing in-service evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. See Hensley, 5 Vet. App. at 159. The Board next finds that the evidence demonstrates that tinnitus symptoms have been continuous since service separation in September 1968. With regard to the Veteran's assertions, including the October 2009 tinnitus questionnaire, where the Veteran reported that his tinnitus began in service and has continued since that time, the Board finds that the Veteran is competent to report the onset of his tinnitus. See Charles; see also Barr (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno, 6 Vet. App. at 469-470 (finding lay testimony competent when it concerns features or symptoms of injury or illness). The Board further finds that the evidence is at least in relative equipoise on the question of whether the Veteran's current bilateral hearing loss disability and tinnitus are related to exposure to acoustic trauma in service. Although the Veteran was not specifically diagnosed with hearing loss disability of either ear in active service, such was not required. The evidence of record demonstrates acoustic trauma in service, and some worsening of hearing loss in both ears during service, as reflected by higher puretone thresholds for specific frequencies in both the right and left ear at the service separation audiological examination conducted in August 1968. The Board finds that such audiometric threshold increases in hearing loss at various frequencies in both ears during service reflects evidence of "chronic" symptoms of left and right ear hearing loss in service, as contemplated by 38 C.F.R. § 3.303(b). With chronic disease as such in service, "subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes." 38 C.F.R. § 3.303(b). In the February 2010 VA audiological opinion, which weighs against the Veteran's claim, the VA examiner opined that, even conceding the Veteran's in-service exposure to acoustic trauma, the Veteran's current hearing loss was not likely related to his exposure to noise in service, reasoning that the Veteran's hearing was "normal" at service separation and that lower frequency threshold shifts were not indicative of noise-induce hearing loss. The VA examiner also opined that the hearing loss may be related to civilian noise exposure and presbycusis. In a May 2010 private audiological opinion, which weighs in favor of the Veteran's claim, the private examiner opined that the Veteran was exposed to excessive, loud noise in service and the current hearing loss was as likely as not due to the loud noise exposure in service. The Board finds that the February 2010 VA opinion in regard to the hearing loss is of little probative value. The February 2010 VA examiner made the factually inaccurate assumption that the Veteran's bilateral hearing loss was "normal" at service separation and that he had recovered without permanent loss during service when, in fact, audiometric testing at the service separation examination in August 1968 showed evidence of sustained, permanent hearing loss during service that is not within the "normal" ranges. See Reonal at 461 (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see Hensley at 157. The VA examiner also opined that the Veteran's current hearing loss "may" also be related to post-service civilian noise exposure and presbycusis, which, as stated, equally suggests that it may not be due to such post-service exposure. Such medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert, 5 Vet. App. at 33; see also Beausoleil, 8 Vet. App. at 463; Libertine, 9 Vet. App. at 523. The Board finds the May 2010 private audiological opinion, in the context of demonstrated in-service acoustic trauma, is sufficient to place in equipoise the question of whether the current bilateral hearing loss disability is etiologically related to the loud noise exposure in service. The private examiner relied on the history provided by the Veteran that he was exposed to loud noise from artillery and mortars in service. See Harris, 203 F.3d at 1350-51; Kowalski, 19 Vet. App. at 177. The May 2010 private audiological opinion is competent and probative medical evidence because it relied on a factually accurate history, as it appears the private examiner was informed of the relevant evidence in this case, and gave a fully articulated opinion expressed in terms of "at least as likely as not" language. The Board also finds that there is competent evidence of a relationship between the Veteran's currently diagnosed tinnitus and active service. Specifically, the Veteran reported chronic symptoms of ringing in the ears in service and that he has experienced those same symptoms since service separation. The same symptoms formed the later diagnosis of tinnitus. See Rhodes v. Brown, 4 Vet. App. 124, 126-27 (1993) (lay witnesses testimony of post-service continuous symptoms of numbness and tingling may be sufficient to substantiate a claim of service connection for thoracic outlet syndrome); Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in- service symptoms and post-service symptoms of dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus that later formed the basis of diagnosis of Meniere's disease); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition); Savage, 10 Vet. App. at 496-97 (continuity of post-service symptoms is "a substitute way of showing" in-service incurrence and medical nexus). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for bilateral hearing loss and tinnitus have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs