Citation Nr: 1306306	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  09-49 300	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel
INTRODUCTION

The Veteran served on active duty from June 1954 to June 1974.

The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida.

In May 2012 the Veteran testified before the undersigned Veterans Law Judge at the St. Petersburg RO; a transcript of that hearing is of record.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.  

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.  The Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service.

2.  The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and the competent opinion evidence on the question of whether the Veteran's current bilateral hearing loss is etiologically related to in-service noise exposure is, at least, in relative equipoise.

3.  The Veteran currently has tinnitus, and competent, uncontradicted opinion evidence exists supporting a finding that the Veteran's current tinnitus is caused by service-connected hearing loss.

CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012).

2.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus, as secondary to service-connected hearing loss, are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim.  Given the favorable action taken on the issues decided herein below, the Board finds that no further assistance in developing the facts pertinent to these claims is required at this time.

Relevant Laws and Regulations

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303.  Such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) .

In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if it becomes disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury.  That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

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 veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).

Analysis

Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted.

The Veteran asserts that he has bilateral hearing loss and tinnitus due to noise exposure during his active duty service.  Specifically, he alleges that he was exposed to noise from firearms when he was required to qualify to use a carbine, an M-16 rifle, and a .45 caliber handgun as well as noise from working as a radar operator which involved long periods of hearing the "drone" of radar echo returns and communicating with interceptors on headsets which could have very high volume and frequent static.  The Veteran's DD Forms 214 show that he served in the Air Force for 20 years, and his primary specialty is listed as Aircraft Control and Warning Technician.  The Veteran also asserts that he first began noticing ringing in the ears in the 1960s, while he was still in active duty service, and that it has intermittently bothered him since that time.  Given that the Veteran's military records support his descriptions of his in-service occupational duties, the Board accepts that the Veteran experienced in-service noise exposure, as alleged. 

The Veteran's service treatment records reflect no specific instances of acoustic trauma or complaints related to hearing loss or tinnitus.  The Veteran's service treatment records show multiple audiological test results within normal limits at 500, 1000, 2000, 3000, and 4000 Hertz during his service.  The Veteran's final audiological examination in January 1974 shows an increase in pure tone thresholds beyond normal limits for both ears at 6000 Hertz only, with findings of 70 decibels in the right ear and 85 decibels in the left ear.  The Board notes, however, that the lack of in-service evidence of hearing loss disability is not necessarily fatal to the claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  See Hensley  v. Brown, 5 Vet. App. 155, 159 (1993).  Likewise, service connection for tinnitus may be granted upon a showing that the disability is medically-related to service or to service-connected disability.

The record shows that the Veteran does currently have diagnoses for both tinnitus and sensorineural hearing loss of sufficient severity to warrant consideration as a disability for VA purposes, pursuant to 38 C.F.R. § 3.385.  In July 2012 the Veteran was afforded a VA audiological examination which revealed, through audiometric testing, the following pure tone thresholds, in decibels:


HERTZ

500
1000
2000
3000
4000
RIGHT EAR
25
20
30
30
30
LEFT EAR
25
20
30
30
30

Speech recognition testing revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear.  These audiometric test results indicate that the Veteran does meet the threshold for a hearing loss disability in both ears under 38 C.F.R. § 3.385.  The examiner also noted that the Veteran reported experiencing tinnitus since the 1960s which manifested as a constant and high pitched sound.

On the question of etiology of current hearing loss, the current record includes conflicting opinions regarding whether the Veteran's current bilateral hearing loss is medically related to his in-service noise exposure and over the etiology of his current tinnitus.

The Veteran was first afforded a VA examination in July 2008.  The examiner noted that the Veteran had a severe increase in threshold levels at his January 1974 examination, and found that the Veteran's hearing loss was at least as likely as not a result of noise exposure in service.  However, the audiometric test results at that time did not show hearing loss of a severity sufficient to meet the threshold for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385.  The examiner also opined that the Veteran's tinnitus was less likely than not due to military noise exposure because the Veteran had been unable to state when his tinnitus first began.

In March 2012 the Veteran submitted a private examination report from a physician who diagnosed the Veteran with tinnitus and sensorineural hearing loss, combined types.  The physician stated that he reviewed the Veteran's military service documents, although it is not clear what documents that included.  The physician stated that it was at least as likely as not that the Veteran's tinnitus and hearing loss were caused by his military service.

At the Veteran's second VA examination held in July 2012, the VA examiner did report audiometric test results which, as discussed above, met the threshold for a hearing loss disability under 38 C.F.R. § 3.385.  The examiner also stated that the Veteran had tinnitus which was at least as likely as not a symptom associated with his hearing loss.  The examiner, however, opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in his military service because his service treatment records showed no shifts in hearing during service, with the exception of a single shift in January 1974 at 6,000 Hertz only, considered to be an unrepresentative anomaly due to the lower pure tone threshold levels at 6000 Hertz reported at later examinations.

It is the responsibility of the Board to assess the credibility and weight to be given the evidence.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  However, the Board may not reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).  In assessing medical opinions, the failure of the physician to provide a basis for his 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 file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). 

In the claim for hearing loss, the Veteran has one VA examination from July 2008 in which the examiner found that the Veteran's hearing loss was due to his in-service noise exposure and one VA examination from July 2012 in which the examiner found that it was not.  These examinations were both conducted by competent VA audiologists who had reviewed the Veteran's claims file and medical records and conducted thorough examinations of the Veteran.  They thus both offer highly probative evidence regarding the Veteran's claim, though they are in direct conflict with one another.  The Veteran's March 2012 private examiner also wrote that the Veteran's hearing loss was due to military service, but this examiner did not appear have access to the Veteran's claims file or full medical records, his findings were not based on a full audiological assessment of the Veteran, and he does not include rationale for his findings.  This opinion therefore is less probative than the July 2008 and July 2012 examinations.  See Prejean, 13 Vet. App. at 448-49; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  

When, as here, after consideration of all evidence and material of record in a case for VA benefits, there is an approximate balance of positive and negative 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 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56.  Given the facts noted above, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that the evidence for and against the finding of a nexus between the Veteran's current hearing loss and in-service noise exposure are at least in equipoise, and the criteria for service connection for bilateral hearing loss are met.

On the matter of entitlement to service connection for tinnitus, the Veteran also has three conflicting medical opinions regarding the etiology.  The July 2008 VA examiner found that because the Veteran was not able to tell her when tinnitus first began, it was less likely than not that tinnitus was caused by noise exposure in service.  The Veteran's April 2012 private examiner's report, although not as probative in value as the VA examination reports, as discussed above, provides an opinion stating that the Veteran's tinnitus was caused by his military service.  The Veteran's July 2012 VA examination provides yet a third alternate opinion, stating that the Veteran's tinnitus, while not due directly to in-service noise exposure, is at least as likely as not a symptom caused by his hearing loss.  The July 2012, though in conflict with the equally probative July 2008 opinion.  The Veteran again has conflicting opinions in the record, this time regarding the etiology of his tinnitus.  The July 2012 opinion is, however, the only opinion to address whether his tinnitus could be caused by his hearing loss, and therefore provides a positive nexus opinion by a competent medical professional which is uncontradicted by any other evidence in the claims file.

Considering the pertinent evidence in light of the governing legal authority, and affording the Veteran the benefit of the doubt, the Board finds that service connection tinnitus, as secondary to now service-connected hearing loss, is warranted.  See 38 C.F.R. § 3.310(a).


ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs