Citation Nr: 1302271	
Decision Date: 01/22/13    Archive Date: 01/31/13

DOCKET NO.  10-44 439	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to service connection for tinnitus. 


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Eckart, Counsel





INTRODUCTION

The Veteran served on active duty from February 1953 to September 1954, with service in Korea. 

This appeal to the Board of Veterans' Appeals, hereinafter the Board, arose from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, that, in pertinent part, denied the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO in September 2012.  A transcript of that hearing was prepared and has been included in the claims folder for review.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record.


Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  A hearing loss did not have its clinical onset in service and is not otherwise related to active duty; a sensorineural hearing loss was not exhibited within the first post service year. 

2.  Tinnitus did not have its clinical onset in service and is not otherwise related to active duty. 


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was not incurred or aggravated in service, and a sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309, 3.385 (2012).

2.  Tinnitus was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim.  Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. 

By way of a letter dated in August 2007, the Veteran was furnished notice of the type of evidence needed in order to substantiate the claim.  The Veteran was also generally informed that he should send to VA evidence in his possession that pertains to the claim and advised of the basic law and regulations governing the claim, the cumulative information and evidence previously provided to VA (or obtained by VA on the appellant's behalf), and provided the basis for the decision regarding the claim. 

The Veteran was provided with adequate notice of the evidence which was not of record, additional evidence that was necessary to substantiate the claim, and he was informed of the cumulative information and evidence previously provided to VA, or obtained by VA on his behalf. 

For the reasons above the Board finds that VA substantially complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the notice requirement, pertaining to the evidence in the claimant's possession or a similar request to that effect).  In this context, it is well to observe that VCAA requires only that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Sutton v. Brown, 9 Vet. App. 553 (1996). 

In addition, where a claim involves basic entitlement to service connection, the Court held that the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all of the elements of a claim for service connection, including notice that a disability rating and effective date will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Here, the Board notes that the Veteran was provided with Dingess-type notice via the letter that was provided to him in August 2007. 

The Board also finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim.  In particular, the information and evidence associated with the claims files consists of the Veteran's service records, post-service treatment records and reports, VA examinations, a Board hearing transcript, and written statements submitted by the Veteran and his representative in support of the claim.  The Board has reviewed the Veteran's Virtual VA claims file.

Moreover, the VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012).  In this respect, the record reflects that the service member did undergo a VA audiological examination in conjunction with his claim for benefits.  The results from that examination have been included in the claims folder for review.  It is noted that in the examination, the examiner reviewed the history, the available medical records, supplied an opinion and provided sufficient information so the Board can render an informed determination with respect to the appellant's assertions.  Therefore, the Board finds that this report is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).

Based on the foregoing, the Board concludes that there is no identified evidence that has not been accounted for with respect to the appellant's claim and that, under the circumstances of this case, VA has satisfied its duty to assist the Veteran. Accordingly, further development and further expending of VA's resources is not warranted. 

II. Analysis

The Board has reviewed all the evidence in the claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 

Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  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) (2012).  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. 38 C.F.R. § 3.303(d) (2012). 

For certain chronic diseases, such as sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a year following discharge from active service.  38 U.S.C.A. § 1101 , 1112, 1113 (West 2002); 38 C.F.R. § 3.307, 3.309 (2012).  Further, service connection may be granted for disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

With respect to the first requirement of a current disability, before service connection may be granted for hearing loss, that loss must be of a particular level of severity. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2012).

Even though disabling hearing loss may not be demonstrated at separation, a service member may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993).  The threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).

The Veteran's service treatment records are negative for any treatment for or findings suggestive of a chronic hearing disability of either ear.  The record reflects that on pre-induction examination in March 1952 and when he was discharged from service in December 1954, a whisper test was given to the Veteran as a means of testing his hearing.  However, a normal whispered voice test can neither establish nor rule out the presence of a hearing loss disability, as defined in 38 C.F.R. § 3.385 (2012), in that these results are inaccurate to determine the presence of high frequency hearing loss.  Particularly in light of Hensley, these examinations are without probative value.  The remaining service treatment records are negative for any complaints involving hearing loss or treatment for any condition related to hearing.  Those same records are also devoid of any complaints involving ringing of the ears or a diagnosis thereof. 

Approximately fifty-three years later in June 2007, the Veteran filed a claim for entitlement to service connection for bilateral hearing loss and tinnitus.  Following his claim for benefits, available medical treatment records were obtained and included in the claims folder.  Among these records was a November 1992 report from a brain MRI, which documented a history of hearing loss left ear, rule out acoustic.  Other records from the early 1990's suggesting the presence of hearing loss include a user's manual for a hearing aid and service contact information for a New Hope Hearing Center dated in October 1994.  

Thereafter, hearing problems were medically documented in June 2002, when the Veteran sought initial VA treatment, with the notation that the Veteran was hard of hearing.  Other VA treatment records from 2002 to 2004 include notations of partial hearing loss in the report of medical history and/or problem lists.  In June 2005 a VA audiological consult revealed the Veteran to disclose a history of sudden onset of hearing loss of hearing in his left ear beginning in the early 1990's, with a history also of his sister and brother in law also having a similar history of sudden onset of hearing loss in one ear.  The Veteran also noted a high incidence of one sided hearing loss in his hometown.  The Veteran reported that the sudden onset of left sided hearing loss was preceded by tinnitus.  MRI scans and hearing tests revealed hearing loss of idiopathic origin with no MRI evidence of retrococlear involvement.  He reported buying hearing aids about 5 years ago and also reported high frequency hearing loss in his right ear.  He also had bilateral tinnitus.  An occupational history of noise exposure in construction/masonry was reported.  Results of audiometric testing revealed mild to moderately severe sensorineural hearing loss (SNHL) in the right ear from 1500 to 1800 Hertz and profound hearing loss in the left ear (dead ear).  Plans to obtain new hearing aids were discussed.  

Also in June 2005 a private ear clinic record documented complaints of no hearing in the left ear and high tone loss in the right ear.  This report was based on the Veteran's reported history, not substantiated by medical records or other documents.  This reported him as having a complete loss of hearing in his left ear which came on gradually without apparent cause.  There also was a moderate high tone nerve type hearing loss in the right ear with poor understanding of words.  There was no evidence of Meniere's disease based on normal ear pressure shown on electrocochleography.  Additionally there was a history of normal MRI in 1990 and 2000 so no tumor or other cause of hearing loss in the left ear was found.  

The rest of the VA audiology records from 2005 address his hearing aid issues.  A November 2005 VA psychiatry record noted the Veteran to be working construction with hearing problems due to loud noise.  A notation from the Veteran's private medical provider for hearing problems described having seen the Veteran for hearing examination in January 2006 with a moderate sensorineural hearing loss shown in the right ear and profound hearing loss in the left ear.  This medical provider was unaware of any hearing loss prior to this, but it did show all the signs and symptoms of possible noise induced hearing loss.  The noise exposure could also be a contributing factor to the ringing in his ears (tinnitus).  Tinnitus was described as quite common in SNHL.  

The Veteran underwent a VA audiological examination in January 2008.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
45
60
65
LEFT
105+
105+
105+
105+
105+

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 0 percent in the left ear.  Tinnitus was present bilaterally and had been for a long time.  It was described as a constant high pitched ringing or humming.  

The examiner reviewed the evidence in the claims file and obtained history of the Veteran's hearing loss.  The unremarkable findings in the service treatment records were noted.  His military noise exposure history included working in an ordinance company handling ammunition.  His occupational and recreational noise exposure included working in housing construction and hunting on a minimal basis in the past.  He had not fired a gun for several years.  His medical history was unremarkable for any ear surgery or infections.  The onset of hearing loss in the left ear in 1992 of unknown etiology was noted. 

Following review of the evidence and conducting the audiological testing, the examiner concluded that the Veteran's hearing loss was not related to his military service and any noise exposure he might have endured.  The examiner also found that the appellant's tinnitus was not related or caused by his military service.  In concluding, the examiner deduced that neither disorder was attributable to any type of noise exposure that the appellant may have experienced while on active duty.  The examiner pointed out the normal hearing sensitivities shown on discharge from service in the whispered voice test, as well as the fact that his hearing loss in the left ear in the 1990's was of unknown etiology and sudden onset.  He was noted also to have worked in a great deal of noise while working in housing construction.  His right ear hearing loss was not such that they would be looking at a combination of presbycusis.  Again the fact that his hearing scored 15/15 on discharge indicated to this examiner that it was less likely than not that the hearing loss and tinnitus were related to military noise exposure.

Thereafter following this examination, a June 2009 VA audiology note revealed that the Veteran was concerned about why his claim was denied.  The findings from the January 2008 VA examination were discussed, with the fact that the claims file contained a normal whispered voice on discharge as a basis for denial.  It was at this time that the Veteran reported to medical personnel that no type of testing was done on separation from service.  The audiologist recommended the Veteran contact his representative and file an appeal.

Subsequent VA medical treatment records from 2009 through 2012 addressed the continued issues of hearing loss with the need for hearing aids, and detailed the maintenance of the hearing aids therein.  These records did not provide further discussion as to the etiology of the Veteran's continued hearing loss and tinnitus disabilities.  They do reflect that he continued to work in construction through 2011.  

A review of the Veteran's treatment records does show complaints involving tinnitus and bilateral hearing loss.  However, those same records do not attribute either disability or disorder to the appellant's military service.  More specifically the January 2008 VA examination determined that it was less likely than not that the hearing loss and tinnitus were not incurred in, nor due to any incident in service.  Rationale was provided for this opinion.  The service treatment records establish that the Veteran did not seek medical evaluation for hearing loss or tinnitus during active duty.  Other medical evidence does not contradict the findings of this VA examination, but tend to suggest that the hearing loss and tinnitus are of unknown etiology, regardless of whether the onset was sudden as reported by the Veteran in the June 2005 VA audiological consult, or gradual, as reported by the Veteran in the June 2005 private audiological consult.  

The Board notes that noise exposure was suggested as the possible cause of the Veteran's hearing loss in the January 2006 record from a private medical provider addressing hearing problems.  This January 2006 record, a June 2005 VA audiological consult and a November 2005 VA psychiatric record all obtained a history from the Veteran of noise exposure reported to be occupational from construction.  Later he denied occupational noise exposure in his written lay statements and hearing testimony, thereby contradicting himself.   

The Veteran has also indicated that he did not seek medical treatment for hearing loss while he was on active duty and it was not until many years after he was discharged that he actually brought forth the assertion that he believed that his bilateral hearing loss, along with his tinnitus, was caused by or the result of his military service.  This establishes that there is no objective evidence that the appellant manifested hearing loss disability, as defined for VA purposes, within one year following service separation.  Thus, service connection on the basis of a presumption of service connection is not warranted.  38 C.F.R. §§ 3.307, 3.309 (2012).

The only evidence favorable to the Veteran's contention that he incurred chronic hearing loss during service is the lay evidence provided by him.  The Veteran has also claimed that his current tinnitus must have been caused also by acoustic trauma he experienced while on active duty.  He has provided written statements, including his own contentions and those from fellow service members, and has also testified at his September 2012 hearing regarding his acoustic trauma and symptoms therein.  

Essentially he attributed his hearing loss to noise from firing an M1 rifle during training, and indicated that due to a weak right eye (of which he provided medical documentation), he was forced to fire left-handed, which exposed his left ear to more acoustic trauma.  He also reported noise from engineering training which included exposure to sounds from explosives.  His DD-214 does show that his most significant duty assignment was in an Ordnance Ammunition Company.  He submitted lay documents purported to be OSHA documents supporting his contentions that M1 rifles and artillery constitute severe noise exposure.  He has also asserted that he had problems listening with his left ear beginning while on active duty, with tinnitus existing in both ears since training, and submitted lay statements from fellow service members and post service acquaintances that concurred with his assertions of trouble hearing with his left ear in service and continuing thereafter.  His lay statements and testimony confirm that he did not seek any treatment for hearing problems or tinnitus until 1992, almost 40 years post service, when his left ear totally "went out."  He reiterated that his hearing was not examined on discharge from service, and that his first hearing exam took place in 1992.  

The Veteran is competent to state that he experienced a decrease in his hearing acuity and ringing of the ears.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Nevertheless, the Board must determine the credibility of the appellant's lay statements and testimony that he experienced this decrease in service and thereafter, as well as the ringing in the ears which began shortly after he was exposed to in-service acoustic trauma. 

The Veteran's contentions that his that current hearing loss and tinnitus were caused by acoustic trauma he experienced while he was on active duty are not supported by any medical evidence that would corroborate his assertions.  While he is competent to report acoustic trauma in service and his claim to this effect is credible, he is not competent to determine the etiology of his hearing loss or tinnitus.  He is not shown to have any medical expertise and determining the cause of auditory disability is not something a lay person can logically infer.  His contentions in this respect have no probative weight. 

The Veteran has not proffered any type of discussion as to why the audiologist's opinion of January 2008 was faulty or based on inaccurate evidence or reasoning, aside from his assertions that he underwent no type of examination on separation from service.  His credibility is damaged however by the report of the examination on separation in December 1954, which while cursory in nature, did reflect a whispered test finding.  Such findings were considered by the VA audiologist, in addition to the post service evidence showing no treatment for hearing problems or tinnitus until 1992, when the examiner concluded that the appellant's bilateral hearing and tinnitus were not related to service.  Elsewhere the Veteran's credibility is shown to be damaged by inconsistencies, such as his contradictory history provided regarding his post service occupational noise exposure, and whether the left ear hearing loss was gradual or sudden in onset.  The Board finds the opinion by the audiologist, and individual with training in the nature and etiology of auditory disability, to be of greater probative value than the Veteran's opinion. 

The Board accordingly finds that the Veteran's reports that he experienced hearing loss and tinnitus beginning in service and continuing since his discharge from active service to be less than credible.  In addition to a lack of complaints or findings of hearing loss or tinnitus in the service treatment records, the initial reference to hearing loss and tinnitus originating in service is in treatment records dated many years after service, with the Veteran's own reports of a history of sudden onset and gradual onset, but no mention of onset in service approximately 40 years earlier.  The Board does not find this evidence convincing.  His statements in this regard are of little probative value. 

The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board 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)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (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 and bases for doing so).  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 determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). 

In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a claims file review, as it pertains to obtaining an overview of a service member's medical history, is not a requirement for private medical opinions.  A review of the claims file by a VA examiner, without more, does not automatically render the VA examiner's opinion competent or persuasive since the claims file is a tool to assist in familiarity for the physician with the claims file, and conversely a private medical opinion may not be discounted solely because the opining clinician did not review the claims file as there are other means by which a physician can become aware of critical medical facts, such as a history of treating the service member for an extended period of time and/or reviewing pertinent medical literature.  The relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. 

Thus, when VA refers to facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon VA to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment.  Certainly, the particular medical information contained in a claims file may have significance to the process of formulating a medically valid and well-reasoned opinion.  The Court further held that a medical opinion that contains only data and conclusions is not entitled to any weight and a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes is derived.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).  In sum, in Nieves-Rodriguez, the Court indicated that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. 

In this instance, the VA examiner's opinion of January 2008 was not equivocal.  That examiner was very specific and direct in the opinion that was provided.  See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  See also 38 C.F.R. § 3.102 (2012) (when considering application of the benefit- of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility).  Although there was mention in a June 2009 VA audiology note of some possible factual contradiction, with the January 2008 VA examination having relied on findings from the separation examination which the Veteran denied undergoing, the Veteran's contentions in this regard have been found lacking in credibility and are non persuasive.  

The Board would further point to the opinion provided by the VA audiologist was not vague or ambiguous with the assertions made, and the examiner discussed why the appellant's bilateral hearing loss and tinnitus were not related to service.  In other words, the Board believes that the VA examiner provided sound reasoning in the analysis of the situation.  The VA medical specialist reviewed in detail the pertinent medical records, discussed the salient facts, and provided a complete rationale for all conclusions presented, as noted in the discussion above. 

Here, a medical expert has fairly considered all the evidence and the opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion.  Wray v. Brown, 7 Vet. App. at 493.  The Board does, in fact, adopt the opinion provided in January 2008 on which it bases its determination that service connection for bilateral hearing loss and tinnitus are not warranted.  In other words, the Board attaches the most significant probative value to the opinion as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the service member.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Thus, the Board finds that the preponderance of the credible, competent evidence is against the appellant's claim for service connection for bilateral hearing loss and tinnitus.  The provisions of 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012) regarding reasonable doubt are not applicable.  The claim must be denied. 

Finally, the Board finds the lapse in time after discharge from service to the showing of the purported disorder to be probative evidence against the appellant's claim.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim).  Therefore, it is the conclusion of the Board that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for hearing loss of both ears and tinnitus. 

Based on the foregoing discussion, the Board finds that the Veteran's claim must be denied.  While the Veteran has been diagnosed with bilateral hearing loss and tinnitus, the weight of the medical evidence is against a finding that these conditions are related to his military service.  On these facts, the preponderance of the evidence is against the claim. 

Therefore, the benefit of the doubt doctrine is not for application herein, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Entitlement to service connection for bilateral hearing loss is denied. 

Entitlement to service connection for tinnitus is denied. 





____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs