Citation Nr: 1237771 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-02 841 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from February 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 RO rating decision that, in pertinent part, denied service connection for bilateral hearing loss. In November 2011, the Veteran testified at a Travel Board hearing at the RO. FINDING OF FACT The Veteran's current bilateral hearing loss is the result of exposure to acoustic trauma during his active service. CONCLUSION OF LAW Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for bilateral hearing loss. As this represents complete grants of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. 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; 38 C.F.R. § 3.303(a). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for a "chronic disease," such as sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Impaired hearing will be considered to be a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. One requirement for service connection is the current existence of the claimed disability. With regard to hearing loss, 38 C.F.R. § 3.385 defines what constitutes the current existence of a hearing loss disability. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. At 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran contends that he has bilateral hearing loss that is related to service. He asserts that he was exposed to noise from jet engines, turboprops, generators as well as other flight line activities while performing his duties as an avionic systems specialist during service. He also reports that he worked in a rescue squadron with C-130 aircraft, HH-43 helicopters, Hu-16 airplanes, and seaplanes, as well as working on transient aircraft in Spain, including F-4s, B-58s, and KC-135s. The Veteran states that hearing protection was not consistently available and that the hard rubber earplugs he used did not fit well. The Veteran essentially maintains that he had bilateral hearing loss during service and since service. As noted above, the Veteran had active service from February 1967 to February 1970. His DD Form 214 reflects that he had two years, six months, and four days of foreign and/or sea service. His occupational specialty was listed as an avionic systems specialist. The Veteran's service treatment records do not specifically show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. Such records do indicate a possible loss of some hearing acuity from the time of the audiological evaluation at the October 1966 enlistment examination, as compared with the audiological evaluation at time of the April 1969 separation examination. There is no evidence of record of hearing loss within the year after service as required for a presumption of service connection. The first post-service evidence of any possible bilateral hearing loss is in November 2008. A November 2008 VA audiology consultation report notes that the Veteran reported that he had constant tinnitus, bilaterally, since his period of service. He also stated that he had a gradual hearing decline with occasional misunderstanding of conversations. He reported that he had military noise exposure from aircraft and he denied that he had any occupational or recreational noise exposure. It was noted that the Veteran was negative for a history of recent or recurrent ear disease, vertigo, head trauma, difficulty swallowing or speech, changes in taste or smell, prior use of amplification, or a family history of hearing loss. The examiner indicated that the Veteran was positive for disorders, including auditory/vestibular pathway involvement. The examiner reported results indicative of a hearing loss disability in both ears as defined by 38 C.F.R. § 3.385. The examiner stated that pure tone audiometry results showed hearing within normal limits through 3000 Hertz sloping to a moderately severe sensorineural hearing loss in the Veteran's right ear, and hearing within normal limits through 2000 Hertz sloping to a moderate sensorineural hearing loss in his left ear. As to an assessment, the examiner reported that the results were not valid for rating purposes. The examiner commented that the Veteran's military noise exposure was more likely as not the contributing factor to his hearing impairment. The examiner stated that the results were consistent with aging and noise-induced cochlear pathology. It was noted that there were no indications of external, middle, or retrocochlear ear disease. A June 2009 VA audiological examination report reflects that the Veteran's claims file was reviewed. The Veteran complained of hearing loss and tinnitus. It was noted that he served for three years in the Air Force. The Veteran reported that he had military noise exposure from his duties in aircraft instrument repair. He stated that he was exposed to noise from jet engines, turboprops, generators, and other flight line activities. The Veteran indicated that hearing protection was not consistently available and that it was easily lost. He maintained that the hard rubber earplugs that he used did not fit well. It was noted that the Veteran denied that he had occupational or recreational noise exposure. The Veteran also denied that he had a family history of hearing loss or an otologic history. He further reported that he suffered from tinnitus that began in service while serving in Libya in approximately 1967. The examiner reported results that were indicative of a left ear hearing loss, but not a right ear hearing loss, as defined by 38 C.F.R. § 3.385. The diagnoses were sensorineural hearing loss and tinnitus. The examiner reported that the Veteran's hearing loss in the right ear that not disabling pursuant to 38 C.F.R. § 3.385, and that the Veteran had mild sensorineural hearing loss in the left ear. The examiner commented that it was less than likely that the Veteran's hearing loss was related to his military noise exposure, as his separation examination report shows normal hearing from 500 to 6000 Hertz in both ears. The examiner stated that, pursuant to a 2005 Institute of Medicine report, noise effects on hearing did not have a delayed onset, and that, therefore, any military-related hearing loss would have been present at the time of the Veteran's separation from service. A January 2012 VA audiological report shows results indicative of a hearing loss disability in both of the Veteran's ears pursuant to 38 C.F.R. § 3.385. No diagnoses were provided at that time. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board observes that the June 2009 audiological examination report notes that the Veteran's claims file was reviewed. The examiner reported results that were indicative of a left ear hearing loss, but not a right ear hearing loss, as defined by 38 C.F.R. § 3.385. The diagnoses included sensorineural hearing loss. The examiner commented that it was less than likely that the Veteran's hearing loss was related to his military noise exposure, as his separation examination report shows normal hearing from 500 to 6000 Hertz in both ears. The examiner also stated that, pursuant to a 2005 Institute of Medicine report, noise effects on hearing did not have a delayed onset, that, therefore, any military-related hearing loss would have been present at the time of the Veteran's separation from service. The Board notes that the VA examiner failed to specifically address the Veteran's reports of noise exposure from jet engines, turboprops, generators, and other flight line activities during service. Additionally, the Board observes that the examiner did not specifically address the Veteran's reports that he had hearing loss in service and that he had hearing loss since service. The Board notes that the Veteran is competent to report that he had hearing problems in service and hearing problems since service, which he has alleged in this matter. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Further, the Board notes that when a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Thus, the Board finds that the opinions provided by the examiner at the June 2009 VA audiological examination are of very limited probative value in this matter. The Board observes that the November 2008 VA audiology consultation report shows results indicative of a hearing loss disability in both of the Veteran's ears as defined by 38 C.F.R. § 3.385. The examiner indicated that pure tone audiometry results showed hearing within normal limits through 3000 Hertz sloping to a moderately severe sensorineural hearing loss in the Veteran's right ear, and hearing within normal limits through 2000 Hertz sloping to a moderate sensorineural hearing loss in his left ear. The examiner also reported, however, that the results were not valid for rating purposes. The examiner commented the Veteran's military noise exposure was more likely as not the contributing favor to his hearing impairment. The examiner also stated that the results were consistent with aging and noise-induced cochlear pathology. The Board notes that although the VA examiner stated that the Veteran's results were not valid for rating purposes, she appears to have considered the Veteran's competent reports of hearing loss in service and since service. See Davidson. Thus, although the VA examiner, pursuant to the November 2008 VA audiology consultation report, did not review the Veteran's claims folder, the Board finds that her opinion is very probative matter. See Wensch v. Principi, 15 Vet. App. 362 (2001). The Board notes that the most probative evidence of record relates the Veteran's bilateral hearing loss, at least in part, to his period of service. Additionally, as noted above, the Veteran is competent to report in-service hearing problems, continuous hearing loss symptomatology since service, and current symptoms that form the basis for diagnosis of disability. See Davidson. Moreover, the Board finds that the Veteran's account is credible. See also Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding 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, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). After considering all the evidence and resolving any doubt in the Veteran's favor, the Board finds that the Veteran has bilateral hearing loss that had its onset during a period of service. Bilateral hearing loss was incurred in active service, warranting service connection. The benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b)) has been considered in making this decision. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs