Citation Nr: 1303158 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 08-39 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2010 and December 2011, the Board remanded the claims for additional evidentiary development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT Bilateral hearing loss and tinnitus are etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, 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 may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). Certain chronic diseases, including sensorineural hearing loss, may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). Moreover, the absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. The Veteran asserts that his currently diagnosed bilateral hearing loss and tinnitus result from acoustic trauma during service. His DD Form 214 indicates that he earned the Bronze Star Medal for his service in Vietnam, which is consistent with participation in combat. A combat veteran's assertions of an event during combat are to be presumed true if consistent with the time, place and circumstances of such service. See 38 U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Thus, the Veteran's statements that he was exposed to acoustic trauma during service are presumed true as they are consistent with his service. 38 U.S.C.A. § 1154(b). The service treatment records (STRs) reflect hearing within normal limits on service entry. There are no complaints of, or treatment for, bilateral hearing loss or tinnitus during service. The STRs contain an undated and uninterpreted Rudmose tracing, and a blank audiogram dated April 1971, the date of the Veteran's separation examination. The separation examination report also shows a blank audiogram. In September 2005, a private physician, Dr. Chihal, opined that the Veteran's diagnosed hearing loss and tinnitus were more likely that not caused by acoustic trauma during service and "possibly indirectly to other toxic agents." During VA ear disease and audiological examinations in February 2006, the Veteran reported a "10 year history of bilateral progressive hearing loss and a 1-year history of bilateral constant tinnitus." The ear disease examiner reviewed the claims folder and noted that the Veteran had "normal audiometric thresholds" at separation from service, which were "backed up by a hard copy of Rudmose tracing." He further asserted that hearing loss "caused by acoustic trauma occurs within the time frame of exposure and not a number of years later." Thus, the Veteran's hearing loss was most likely due to age-related presbycusis, and less likely than not due to acoustic trauma during service, because of the negative STRs and the Veteran's stated history as to the fairly recent onset of his symptoms. In June 2008, a private audiologist, G. Luke, evaluated the Veteran and reviewed his service personnel records. Her report notes that the Veteran was routinely exposed to light weapons fire, as well as the noise of incoming mortars and artillery, during his Vietnam service. Ms. Luke concluded that the Veteran's hearing loss and tinnitus were of a "degree and pattern ... commonly associated with intense noise exposure" and that it was " more likely than not that the hearing loss and tinnitus he experiences are due to his military-related intense noise exposure." During a VA audiological examination in October 2008, the Veteran reported "recreational noise exposure as a child," as well as exposure to potentially damaging noise during service. The examiner noted that there were "no audio exams" during his entrance or separation examination, and that a "Rudmose chart ... was unreadable." In the absence of competent audiometric testing during service, the examiner could not come to a conclusion as to the etiology of the Veteran's hearing loss without resort to speculation; however, she did find that the Veteran's tinnitus was less likely than not related to his service, because of the absence of complaints of tinnitus in the STRs and the Veteran's stated history of recent onset of symptoms. An addendum to this opinion was received in September 2010. On this occasion, the examiner indicated that the undated Rudmose graph in the Veteran's STRs "suggested that his hearing was still within normal limits bilaterally" at separation. As a result, she amended her conclusions to reflect that the Veteran's hearing loss was less likely than not related to his service, since his hearing was purportedly within normal limits throughout his period of active duty. The Veteran underwent another VA examination in May 2011, which was conducted by the same examiner who evaluated the Veteran in February 2006. After reviewing the claims folder and evaluating the Veteran, the examiner concluded that his findings from February 2006 were essentially unchanged; that is, hearing loss was less likely than not related to the Veteran's service, because there was no indication of hearing loss in the STRs, nor did the Veteran indicate that he first noticed hearing loss during service. In his view, the more likely etiology for the Veteran's hearing loss was presbycusis. The examiner further found that the Veteran's tinnitus was less likely than not related to his service, since there was no objective evidence of tinnitus during service and since the Veteran indicated that his tinnitus was of fairly recent onset. The examiner did conclude, however, that tinnitus was "most likely" related to the Veteran's hearing loss. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Veteran has not asserted that he first observed symptoms of hearing loss or tinnitus during service. Moreover, there follows a period of over three decades during which the Veteran did not seek any form of treatment or evaluation for hearing loss or tinnitus. Nevertheless, the hearing loss and tinnitus diagnosed many years after service cannot be clearly disassociated from the Veteran's conceded in-service exposure to loud noise. The September 2005 and June 2008 private medical opinions are of particular significance in this matter. Both Dr. Chihal and Ms. Luke are competent to render an opinion as to the etiology of hearing loss and tinnitus. Although neither had the opportunity to review the entire claims folder, the Veteran gave an accurate and thorough history regarding his exposure to noise during service and his relevant symptomatology. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the mere fact that an examiner did not review the claims file does not render a medical examination inadequate, particularly where the content of the examination shows that the examiner was familiar with the Veteran's history.) Their opinions are reasonably based on the Veteran's stated history, which has not been shown to lack credibility. The negative VA opinions and addenda are predicated primarily upon the lack of documentation of hearing loss and/or tinnitus in the STRs, as well as a purportedly normal audiogram at separation in April 1971. However, an absence of findings of hearing loss during service is not a bar to service connection. See Hensley, supra. Also, it is impossible to determine the Veteran's hearing acuity at his separation based upon the evidence of record. Although the February 2006 examination report notes that the Veteran's hearing was "normal" at separation, and that these findings were "backed up by a hard copy of Rudmose tracing," the April 1971 audiogram contained in the STRs contains no puretone thresholds upon which to base such a finding. Moreover, although the Rudmose tracing referenced by the examiner does contain numerical values, it is undated; thus, it is impossible to determine whether it reflects puretone thresholds recorded at separation. In addition, the tenor of the October 2008/June 2010 examination reports reflects that the Rudmose audiogram results are unreliable at best. Since the VA opinions and addenda are not reasonably based on the evidence of record, the private medical opinions are of greater probative weight in this matter. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Service connection for hearing loss and tinnitus is warranted. See 38 U.S.C.A § 5107 (West 2002). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs