Citation Nr: 1302901 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 07-10 186A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active United States Coast Guard service from August 1960 to July 1964. This matter arises to the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that in pertinent part denied service connection for a bilateral hearing loss disability and denied service connection for tinnitus. In February 2010 and again in March 2012, the Board remanded the claims for additional development. FINDINGS OF FACT 1. Because the Veteran was not scientifically tested for auditory acuity at entrance or exit from active service, it cannot be ascertained whether an upward shift in hearing thresholds occurred during active service or whether a hearing loss disability was present at the time of discharge from active military service. 2. Competent medical evidence tending to dissociate a current bilateral hearing loss disability and/ or tinnitus from noise exposure during active military service has been controverted by equally persuasive medical evidence. 3. The Veteran appears to be a competent, credible, and reliable historian and has reported continuity of symptoms dating back to active military service. CONCLUSION OF LAW A bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1137, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1137, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As set forth at 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefits sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the Veteran was not in combat, he will not be afforded this consideration. Entitlement to service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385 (2012), which provides: For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In Hensley v. Brown, 5 Vet. App. 155, 159, (1993), the Secretary posited that where the regulatory threshold requirements for hearing disability are not met until several years after separation from service (such as is shown here), the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system, and post-service test results that meet the criteria of 38 C.F.R. § 3.385. VA rating authorities must evaluate available testimony, clinical data, diagnoses, and any medical opinions relevant to the issue. For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometry test results resulting in an upward shift in tested thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometry testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. The Veteran's Service Treatment Reports (STRs) do not supply the information needed to determine his hearing thresholds at entry into active service, as his hearing thresholds at the various frequencies were not scientifically tested. Rather, he simply responded satisfactorily to voice testing. The STRs include April 1964-dated clinical records of treatment for "sore ears." A medic reported that eardrops were administered for an "inflammation in middle ear." The report notes that the left ear hurt and pressure was felt. The medic reported a visible left ear hemorrhage with clotted blood and offered an impression of questionable otitis media. The Veteran was referred to a medical officer for further examination, but no further report is of record. A separation examination report is negative for ear pathology and also reflects that his hearing merely underwent voice testing. The Veteran submitted his original claim for benefits in January 2005. He reported that during active service he was exposed to "intense" noise from blowers, machinery, water pumps, and paint chippers-all without hearing protection. A July 2005 VA audiometry evaluation reflects that an audiologist conceded noise exposure during active service with minimal post-service noise exposure. The hearing loss-related diagnoses were mild to severe right ear high frequency sensorineural hearing loss and mild to severe left ear sensorineural hearing loss. The audiologist dissociated hearing loss from noise exposure during active service and provided a rationale to the effect that the Veteran reportedly did not notice hearing problems until well over 30 years after active service. The audiologist acknowledged, however, that the whispered-voice test results in the STRs do not rule out the possibility that a hearing loss disability existed at the time of exit from active military service. During the July 2005 VA audiometry evaluation, the Veteran reported intermittent tinnitus. The audiologist dissociated tinnitus from active service and also dissociated tinnitus from the same etiology as the Veteran's hearing loss. The audiologist explained that where tinnitus is caused by noise exposure, it would be constant, not intermittent. Following the RO's denial of the claim, in his substantive appeal, the Veteran argued that VA had failed to apply the benefit of the doubt doctrine. In February 2010, the Board remanded the case for further consideration of the April 1964 STR that notes treatment for a middle ear infection. In July 2010 a VA audiologist responded to the remand instruction. The examining VA audiologist concluded that the current sensorineural hearing loss is inconsistent with hearing loss that results from otitis media and also found that there was no current middle ear pathology. Tympanograms revealed normal middle ear functions. The July 2010 VA audiometry evaluator confirmed that the voice testing reflected in the STRs is not reliable evidence of either normal or impaired hearing. In support of this position, the audiologist referred to, and relied upon (but did not supply a copy of) a September 2005 Institute of Medicine Report entitled, "Noise and Military Service-Implications for Hearing Loss and Tinnitus." The audiologist paraphrased that report, stating, "...if documentation of the existence of HL [hearing loss] at discharge is missing, it is nearly impossible to determine whether HL later in life is the result of noise exposure during prior military service." The audiologist mentioned other potential etiologies for hearing loss, such as age and occupational noise exposure [apparently referring to post-service occupational noise exposure]. The audiologist then reiterated that it would be speculative to allocate a portion of the Veteran's hearing loss to any of the possible etiologies, as "a reasonable degree of certainty based on the evidence" cannot be achieved. During the July 2010 examination, the Veteran reported that tinnitus remained intermittent as it had been since onset during active service. The audiologist concluded that the etiology of tinnitus could not reliably be addressed without resorting to speculation. The audiologist explained that the Veteran's reports of the onset of tinnitus were inconsistent. Whereas he had earlier reported only a few days of tinnitus in service, more recently he reported more persistent tinnitus dating back to active service. The audiologist then concluded that it is unlikely that tinnitus is related to active military service, but again, cautioned that the etiology of tinnitus could not be determined without resorting to mere speculation. Finally, the audiologist mentioned that the claims file and pertinent medical history were reviewed. The audiologist discussed a January 2005-dated VA outpatient treatment report [not of record at that time] that mentions a "negative" history of tinnitus. In March 2012, the Board again remanded the case, requesting that this January 2005-dated out-patient treatment report, and other recent treatment reports, be associated with the claims file. Since then, that and other VA out-patient treatment reports have been associated with the claims file and considered in an October 2012 SSOC. The January 2005 VA out-patient treatment report recently received mentions that there is a history of hazardous noise exposure around ships and current difficulty hearing. The report mentions that there is no history of tinnitus, no history of middle ear pathology, and no recent medical treatment for ear or hearing related disorders. The report mentions that audiometry revealed slight to moderately severe sensorineural hearing loss. Later-dated out-patient treatment reports do not add relevant information. With exceptions, the medical opinions discussed above are persuasive, as they are based on accurate facts and supported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The exceptions include the January 2005 VA out-patient treatment report that notes a negative history of tinnitus or middle ear pathology. Because the record mentions both tinnitus and middle ear pathology, no weight will accorded the January 2005 VA outpatient treatment report. Also of limited persuasive value are the negative etiology opinions expressed in a July 2005 VA examination report. Although the July 2005 VA examiner dissociated any current hearing loss from active military service on the basis that decreased hearing loss was not reported for over 30 years, the examiner cautioned that there is no reliable way to determine that a hearing loss disability did not exist at the time of separation. Thus, by noting unreliability in the underpinning evidence, the audiologist has, in effect, significantly limited the persuasive value of his/her negative etiology opinion. With respect to the etiology of tinnitus, the negative medical evidence has also been controverted. In July 2005, the VA audiologist dissociated tinnitus from active service on the basis that where tinnitus is intermittent in nature, this rules-out noise exposure as a cause, as noise-exposure-related tinnitus is constant tinnitus, not intermittent. While this provides a seemingly persuasive opinion, it has been controverted by the more recent, July 2010 VA audiology opinion. In July 2010, another VA audiologist who had reviewed the case and examined the Veteran concluded that the etiology of intermittent tinnitus cannot be determined reliably. That audiologist did not, and would not, dissociate tinnitus from noise exposure during active service. Thus, a medical controversy concerning the cause of tinnitus arises. Although the Board may choose among competing reports, it may not substitute its own medical judgment for that of the health professional. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (the Board may not second-guess a medical expert based upon its own opinion). The Board finds the July 2010 medical opinion to be much more persuasive than the July 2005 opinion, as it is based on accurate facts, is supported by cogent rationale, and it has considered, and rejected, the July 2005 conclusion. Id (a medical opinion that contains only data and conclusions is accorded no weight). Reonal, 5 Vet. App. at 461 (medical opinion based upon an inaccurate factual premise has no probative value). The Board must also address the competency, credibility, and probative value of the lay evidence. The lay evidence is competent with respect to observance of symptoms readily observable (such as noticeable hearing loss and tinnitus) and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). Use of lay evidence as diagnostic evidence requires further analysis of the Veteran's competency. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or, (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional. In this case, because the medical experts do agree that there is a current hearing loss disability and tinnitus, the Veteran's assertions of continuity of symptoms dating back to active military service may be afforded at least some weight in this matter. The Board concludes that there is a medically sound basis for a health professional to attribute the current hearing loss to noise exposure in service. Persuasive evidence of intercurrent cause has not been submitted. After consideration of all the evidence of record, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for a bilateral hearing loss disability and for tinnitus will therefore be granted. ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs