Citation Nr: 1302846	
Decision Date: 01/25/13    Archive Date: 01/31/13

DOCKET NO.  11-26 787	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel



INTRODUCTION

The Veteran served on active duty (AD) in the Army from June 1956 to June 1959.  He also reportedly had additional service in the Army Reserves immediately prior to that, from July 1955 to June 1956, so presumably on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).

This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for hearing loss.

A more recent July 2012 RO decision also denied entitlement to service connection for tinnitus.  The Statement of Accredited Representative in Appealed Case (in lieu of VA Form 646) since received in November 2012 from the Veteran's local representative at the RO made argument concerning both claims.  He indicated that, although the claim application (VA Form 21-526) only had claimed entitlement to service connection for hearing loss, not also tinnitus, a VA compensation and pension (C&P) examiner who since had evaluated the Veteran in October 2010 concerning his claim for hearing loss had etiologically linked both conditions (so both the hearing loss and tinnitus) to his military service.  Therefore, argued the representative, these claims are "inextricably intertwined", although the RO had not recognized the informal tinnitus claim until April 2011.  See Harris v. Derwinski, 1 Vet. App. 180, 183(1991) (indicating claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning one of the claims cannot be rendered until a decision on the other).  See also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Hoyer v. Derwinski, 1 Vet. App. 208 (1991); and Holland v. Brown, 6 Vet. App. 443, 446 (1994) (collectively indicating that these types of claims should be considered concurrently to avoid piecemeal adjudication of claims with common parameters).


The representative's argument that service connection also is warranted for tinnitus, so not just for hearing loss, is tantamount to a timely notice of disagreement (NOD) with the RO's denial of this additional claim.  38 C.F.R. § 20.201 (2012).  See also Gallegos v. Gober, 14 Vet. App. 50 (2000) (indicating an NOD need not contain any magic words or phrases, and that VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task).  In making this determination, the Board also points out that the Court has held that "no procedural requirement in the adjudication of Veterans benefits is less burdensome than the NOD ... finding that a statement constitutes an NOD merely requires finding terms that can be reasonably construed as a desire for appellate review."  See Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010) (rev'd on other grounds by sub nom. Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011)).

Ordinarily, the filing of a timely NOD concerning a claim, when the claimant has not been provided a statement of the case (SOC) in response, would require remanding (rather than merely referring) the claim for issuance of an SOC and to give the claimant opportunity, in response to the SOC, to complete the steps necessary to perfect the appeal of the claim by also filing a timely substantive appeal (VA Form 9 or equivalent statement).  See Manlincon v. West, 12 Vet. App. 238 (1999).  The filing of a VA Form 9, however, is not a jurisdictional predicate to the Board's adjudication of a claim.  Percy v. Shinseki, 23 Vet. App. 37 (2009) (pointing out, among other things, that, while 38 U.S.C. § 7105(d)(3) provides that the RO, as the agency of original jurisdiction (AOJ), "may" close a case if a substantive appeal is not timely filed, such action is discretionary, not mandatory).  Indeed, in Archbold v. Brown, 9 Vet. App. 124 (1996), the Court held that the issuance of an SOC was not an absolute requirement for the acceptance of a Substantive Appeal.  Specifically, the Court noted that, although the Veteran had not received an SOC after the filing of his NOD, he nevertheless had filed correspondence that the Court found to meet the requirements for a Substantive Appeal.  Archbold, 9 Vet. App. at 132-33.  The Court stated, 

This written statement presented to and accepted by the Board specifically identified the issue appealed; contained specific arguments as to the errors made by the RO . . .; and thus contained the necessary information required for a [Substantive Appeal] by [38 C.F.R. § 20.202].  This . . . statement was timely filed since no SOC was provided to the Veteran (under § 20.202(b), the Veteran had until at least 60 days after the SOC was mailed to him in which to file his [Substantive Appeal]) and, in any event, since the statement was received within the one-year appeal period which began . . . [after] the date the RO decision being appealed was mailed.  See 38 C.F.R. § 20.302(b).  Id., at 132.  The Court further noted that, if there was a concern as to the adequacy of the Substantive Appeal, it was the Board's obligation (under 38 C.F.R. § 20.203 (1995)) to notify the appellant of such and to allow him a period of 60 days "'to present written argument or to request a hearing to present oral argument on this [procedural] question.'"  Id.

Here, since, for reasons and bases that will be discussed, the Board is granting the claim of entitlement to service connection for hearing loss, and the medical and other evidence supporting this grant also supports the claim for tinnitus, the Board is going ahead and also granting the claim for tinnitus.  There is no possibility of prejudicing the Veteran since both claims are being granted, so including this additional tinnitus claim.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

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



FINDING OF FACT

It is just as likely as not the Veteran's bilateral hearing loss and tinnitus are the results of repeated exposure to loud noise and consequent injury (acoustic trauma) during his military service.


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, his bilateral hearing loss and tinnitus are due to injury incurred in service.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed all of the evidence in the Veteran's claims folder.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists that does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Veterans Claims Assistance Act of 2000 (VCAA)

Since the Board is fully granting these claims of entitlement to service connection for bilateral hearing loss and tinnitus, there is no need to discuss whether there has been compliance with the duty to notify and assist provisions of the VCAA.  This is because even if, for the sake of argument, there has not been, this ultimately would be inconsequential and, thus, amount to no more than harmless error.  38 C.F.R. § 20.1102.  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a 
case-by-case basis and that, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing such error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim).  See, too, VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).  There simply is no such possibility in this instance.

Service Connection

Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  That an injury or a disease occurred in service is not enough; there must be chronic (meaning permanent) disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, or this is legitimately questionable, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38  C.F.R. § 3.303(b).  Service connection also may be granted for any injury or disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).


To establish entitlement to service connection on a direct basis, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or showing he at least has at some point since the filing his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Organic diseases of the nervous system, including sensorineural hearing loss, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 
10-percent disabling) within one year of separation from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The Veteran attributes his current hearing loss and tinnitus to repeated exposure to excessively loud noise in the military, including especially while working in the artillery in the Reserves and as a helicopter medic and artillery line medic in the Army.  See his April 2011 statement in support of his claims.

His service treatment and personnel records presumably were destroyed in a July 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri.  The NPRC is a military records repository.  The NPRC indicated this in a June 2010 response to the request for these records concerning his military service.  The RO informed the Veteran of this in a July 2010 letter.


When service treatment records (STRs) are lost or missing, VA has a heightened duty to assist in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records.  Cromer, id.  (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). 

In a March 2009 VA treatment record the Veteran reported a significant history of noise exposure while in service.  Post-service he had worked as a police officer and then became a chiropractor for 42 years.  He also reported recreational noise exposure from construction and power tools.  He was diagnosed with mild sloping to profound mid to high-frequency slightly asymmetric sensorineural bilateral hearing loss.  In a January 2010 VA treatment record he was fitted for hearing aids.

He had VA C&P examination in October 2010.  He reported his hearing loss had begun many years earlier, in 1958 (so during his military service), when he was exposed to loud noise in the artillery and as a helicopter medic.  He also discussed noise exposure during basic training, including firing M-1 rifles, launching grenades, and during simulated explosions.  He reported post-service noise exposure, but with hearing protection, from using power tools, and riding watercrafts and motorcycles without use of hearing protection.  He was wearing the hearing aids prescribed by the VA Medical Center (VAMC).

The examiner performed an audiogram and confirmed the Veteran had mild-to-profound bilateral (right and left ear) sensorineural hearing loss.  Moreover, there was sufficient hearing loss in each ear to be considered a ratable disability for VA compensation purposes, meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385.  According to this VA regulation, hearing loss only will be considered to be an actual ratable 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 thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  Id.

The subjective factors were difficulty hearing and understanding speech and the objective factors were the audiogram results.  This examiner opined that it was at least as likely as not this hearing loss (and the tinnitus that also was diagnosed) was related to the Veteran's military service.  Her rationale was that the Veteran claimed exposure to loud noises including artillery fire and helicopters.  She also explained that sensorineural hearing loss, in almost every case, worsens over the years.

In December 2010, so some two months later, the RO requested clarification of that examiner's October 2010 opinion.  The Veteran's representative argued in the November 2012 Statement of Accredited Representative in Appealed Case (in lieu of VA Form 646) that that was, in actuality, just the RO's means of obtaining evidence it would use to deny, rather than grant, the claims.  See Arnold v. Shinseki, No. 09-3368 (March 24, 2010).  In Mariano v. Principi, 17 Vet. App. 305 (2003), the Court indicated it "would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case."  Mariano, at 312.  In Douglas v. Shinseki, 23 Vet. App. 19 (2009), however, the Court distinguished its holding in Mariano.  In Douglas, the Court acknowledged its decision in Mariano, but held that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim.  Douglas, at 26.  Here, as justification for requesting this clarifying opinion, the RO informed the examiner that the Veteran's service as a helicopter medic had not been established and that he had post-service noise exposure also.

This examiner offered an addendum opinion that it was resultantly less likely than not the Veteran's hearing loss (and tinnitus) were due to in-service noise exposure as an operating room specialist because in-service noise exposure had not been determined and he had some post-service noise exposure.

In deciding claims, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (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 case, the Board assigns less probative value to the December 2010 addendum opinion, especially in comparison to the initial opinion offered in October 2010.  As the Veteran's representative correctly notes, this supplemental opinion does not take into account the Veteran's lay statements regarding noise exposure during his military service and continuity of symptomatology during the many years since and offers no discussion of the underlying medical rationale for the opinion, either, which, as mentioned, according to the holding in Neives-Rodriguez, is where most of the probative value is derived.  See the Representative's December 2012 Brief making this argument.  See, too, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records (STRs) to provide a negative opinion).  There also is no indication she reviewed the claims file when providing her supplemental opinion, as she apparently had when providing her initial opinion.  To the contrary, in her October 2010 opinion she reviewed the claims file and based her opinion, in part, on the Veteran's statements of noise exposure in service.  She also offered rationale for her opinion when initially commenting, which included a finding that sensorineural hearing loss generally worsens over time, which apparently has occurred in this particular instance.  And while it is true according to the holding in Neives-Rodriguez that review of the claims file is not determinative or dispositive of an opinion's probative value, it does have significance when, as here, evidence in the file, if considered, may change the outcome of the opinion.  Moreover, in Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a favorable medical nexus opinion solely on the rationale it was based on a history given by the Veteran.  Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.  
Here, there is no inherent reason for questioning the Veteran's credibility.  The Court has held that VA cannot ignore a Veteran's testimony simply because he is an interested party, although his personal interest may affect the credibility of his testimony.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); see also Pond v. West, 12 Vet. App. 341, 345 (1999).

In his September 2011 substantive appeal (on VA Form 9), the Veteran explained that he was only in the operating room for a short time during his initial training.  He added that, after that initial training, he was assigned to a field hospital at Fort Lewis.  He stated most of his unit was trained and assigned to additional duties, other than field training.  He was trained and worked as a helicopter medic and as a medic with the artillery and infantry line units.  He conceded there would have been low or minimal noise exposure when working in the operating room, but maintained he had a high amount of noise exposure performing his other duties outside of the operating room.

In addition to his statements of noise exposure, he submitted a statement from a friend who had trained with him and was assigned to the same unit.  In this July 2010 supporting statement, the friend describes how they were assigned as helicopter medics and, on other occasions, as aid-station medics with artillery batteries, during their training shoots.  He also stated there was no emphasis on wearing hearing protection and that none was provided.  He indicated that he also suffered from significant hearing loss.

Both the Veteran and his friend (fellow comrade) are competent to report what occurred during their military service, including insofar as their particular duties and responsibilities since this is their firsthand knowledge of a factual matter.  See Washington v. Nicholson, 19 Vet. App. 363 (2005).  They similarly are competent to comment on the level of noise exposure they experienced while in service, as well as to experiencing difficulty hearing and tinnitus in the aftermath.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Furthermore, the Board finds their statements also to be credible, so not just competent, therefore ultimately probative.  See Layno (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).

At the very least, then, the Board finds the evidence is in relative equipoise, meaning at least as much probative evidence supporting the claims as there is against them.  While in the December 2010 supplemental opinion, the VA examiner determined the Veteran's hearing loss and tinnitus were unrelated to his service, she had previously reviewed the claims file and offered an opinion, with rationale, indicating it was at least as likely as not that his hearing loss and tinnitus were related to his military service.  So she has given opinions both for and against these claims.  The Veteran and a friend from his unit also have provided competent, credible statements regarding the amount and extent of noise exposure they had in service.  Finally, as the Veteran's STRs are presumed destroyed, VA has a heightened duty to assist him, including considering the applicability of the 
benefit-of-the-doubt rule.  See Cromer, supra.  So resolving all reasonable doubt in his favor, it is just as likely as not his hearing loss and tinnitus are attributable to the noise exposure he had during his service.  And this being the case, his claims must be granted with resolution of this reasonable doubt in his favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology.  Instead, this need only be an as likely as not proposition.).


ORDER

The claims of entitlement to service connection for bilateral hearing loss and tinnitus are granted.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs