Citation Nr: 1309178 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-21 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to a compensable evaluation for right ear hearing loss prior to May 16, 2006; to an evaluation in excess of ten percent evaluation from May 16, 2006 through July 31, 2008; and to a compensable evaluation from August 1, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from August 1984 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) from October 2006 and May 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In the October 2006 rating decision, the RO increased the Veteran's evaluation for right ear hearing loss to 10 percent, effective May 16, 2006. A June 2007 rating decision proposed to reduce the evaluation to 0 percent (noncompensable) on the basis that the prior increase had been erroneous in considering the Veteran to have service-connected bilateral hearing loss (only the right ear is currently service connected). The May 2008 rating decision decreased the Veteran's evaluation for right ear hearing loss to the noncompensable level, effective August 1, 2008. On May 25, 2005, the Veteran filed a claim for an increased evaluation for her service-connected right ear hearing loss. No action was taken on her claim by the RO, and on May 16, 2006, the Veteran submitted another claim for an increased evaluation, as well as a claim for service connection for left ear hearing loss. The Board therefore considers May 25, 2005, as the date of the claim for an increased evaluation for right ear hearing loss and May 16, 2006, as the date of the claim for service connection for left ear hearing loss. The issue of service connection for left ear hearing loss was not certified to the Board. The record shows that on her August 2007 VA Form 9, the Veteran indicated that she was only appealing the issues discussed in the attached notes. In the attached notes, the Veteran did not include left ear hearing loss in the list of benefits she was appealing. Service connection for left ear hearing loss was subsequently included as an issue in a May 2009 Supplemental Statement of the Case (SSOC) but was not certified as an issue to the Board. The Veteran indicated at her February 2010 hearing that she is seeking service connection for left ear hearing loss. Interpreting the above actions liberally in favor of the Veteran, the Board will consider service connection for left ear hearing loss as an active issue currently on appeal. The Veteran testified before a Veterans Law Judge (Veterans Law Judge) who is no longer employed at the Board at a videoconference hearing in February 2010. A transcript is of record. This claim was previously before the Board in April 2010, December 2011 and November 2012, at which time the Board remanded it for additional development. The requested development has been completed. In October 2012 the Veteran requested to appear at a hearing by videoconference before another VLJ. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in January 2013. A transcript is of record. The issue of entitlement to an increased evaluation for right ear hearing loss, reclassified as entitlement to an increased evaluation for bilateral hearing loss, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT Resolving all reasonable doubt in the Veteran's favor, left ear hearing loss had its onset in service. CONCLUSION OF LAW Left ear hearing loss was incurred in service. 38 U.S.C.A. §§ 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for left ear hearing loss. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection for certain chronic diseases, including sensorineural hearing loss, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). For 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above 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 (2012). See also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The service treatment records show that in July 1985 the Veteran complained of high frequency hearing loss. On audiology testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 20 10 5 August 2001 private otolaryngology treatment indicated that a 1999 audiogram showed normal hearing in the left ear but also stated that the Veteran had conductive hearing loss. A December 2001 private treatment note stated that the Veteran had mild bilateral conductive hearing loss that was worse on the right. February 2004 VA treatment records indicate that the Veteran had chronic problems with both ears, with the left worse than the right. She wore a hearing aid for left ear hearing loss. A March 2004 audiogram from the Veteran's reserve service showed, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 20 30 20 20 The Veteran had a VA examination in August 2004. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 25 30 20 20 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. December 2005 private family practice treatment records indicate that the Veteran had conductive hearing loss and eustachian tube dysfunction. May 2006 treatment records indicate that she also had sensorineural hearing loss. In June 2006 the Veteran underwent a VA examination, which revealed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 30 40 35 25 Speech audiometry revealed speech recognition ability of 76 percent in the left ear at 75 decibels SL. The examiner diagnosed the Veteran with mild sensorineural hearing loss in the left ear. She recommended that the Veteran have a hearing aid evaluation and fitting for both ears upon medical clearance. The Veteran testified at a May 2009 Decision Review Officer hearing that she felt severe pain in both ears during a couple of flights in 1984 to 1985, which was during her military service. The Veteran had another VA examination in October 2009. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 35 35 40 30 35 Speech audiometry revealed speech recognition ability of 94 percent in the left ear. She was diagnosed with bilateral hearing loss, and it was noted that she had subjective difficulty in most listening environments and a decrease in hearing acuity bilaterally. The examiner noted that the Veteran had mild mixed hearing loss in the left ear. It was also noted that the Veteran had difficulty with communication in her usual occupation and daily activities. The Veteran testified at the February 2010 Board hearing that no hearing protection was used at the rifle range during basic training. Furthermore, there was noise from the equipment that she used in her in-service work as a dental assistant. In a May 2010 VA opinion, an audiologist opined that given the type, extent and progression since separation, the Veteran's hearing loss was less likely as not caused by military service. The audiologist wrote that she had reviewed the claims file. However, her detailed discussion of the record and her rationale did not include the October 2009 examination. The May 2010 opinion cannot be given probative value because it does not include discussion and consideration of the most recent audiological examination. See Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran wrote in an August 2011 statement that while flying to her duty station during service, she cried with pain in both ears, and that the left was worse. She was exposed to high pitched noises in her work as a dental assistant, and hearing protection was not used on the rifle range. In a January 2012 opinion, a VA audiologist wrote that the left ear hearing loss did not occur during service based on the extent, configuration and progression from normal from 1985 to 2004. It was noted that the effects from noise induced hearing loss from military service would have been worse immediately following the noise exposure, while the Veteran's hearing significantly worsened after 2004. The Veteran testified at the January 2013 hearing that she had had a diminished ability to perceive sound in her left ear since military service. The Board notes that the January 2012 VA audiologist did not consider the competent and credible statement in the record from the Veteran that she has had difficulty hearing since her military service. See Layno, 6 Vet. App. at 470. Further, the August 2001 private treatment records indicate that the Veteran had conductive hearing loss of 20 dB pure tone average. While this can be considered normal under 38 C.F.R. § 3.385, it shows some degree of hearing loss. Further, while it was noted that the 1999 audiogram was normal, it is not clear from the record whether there was still some degree of hearing loss. Therefore, probative value cannot be given to the notation from the August 2001 treatment records regarding the 1999 audiogram being normal. Probative value can also not be given to the January 2012 audiologist's statement that the Veteran's hearing was normal until 2004 because it is not consistent with the August 2001 treatment records, regardless of whether the Veteran's hearing met the standard of 38 C.F.R. § 3.385. Considering all of the evidence of record, the Board finds that the Veteran's left ear hearing loss cannot be reasonably disassociated from her noise exposure during service. The audiogram results since June 2006 show that the Veteran's hearing loss meets the standard of 38 C.F.R. § 3.385. Additionally, she has consistently reported incidents of noise exposure from service that caused this condition. Moreover, the credible lay evidence of record demonstrates that the Veteran's hearing has persisted since her service. Applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for left ear hearing loss is granted based recurrent symptoms since service. See 38 C.F.R. § 3.303(a). ORDER Service connection for left ear hearing loss is granted. REMAND The Veteran perfected an appeal as to whether an increased rating is warranted for her service-connected right ear hearing loss. The Board notes that by way of the decision, above, left ear hearing loss is now also service-connected, making bilateral hearing loss the service-connected disability. Diagnostic Code 6100 of the Rating Schedule rates defective hearing from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second (hertz). To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 (2012). Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Table VI is used to determine a Roman numeral designation (I through XI) for hearing based on a combination of the percent of speech discrimination and pure tone threshold average. 38 C.F.R. § 4.85(b). These rating criteria are applied to assess one rating for a bilateral hearing disability. The Court has held that a claim involving service connection for one ear and a higher rating for the other ear, such as was the case here, are inextricably intertwined. See Simmons v. Shinseki, 24 Vet. App. 87, 93 (2010). As such, the bilateral hearing loss aspect of this claim must be remanded so that the RO can, in the first instance, consider the whether a higher rating is warranted. The last examination for the Veteran's hearing loss was in October 2009 and the January 2013 hearing testimony indicates that the degree of hearing loss may have worsened since then. As such, VA is required to afford her a contemporaneous VA examination to assess the current nature, extent and severity of her bilateral hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to the claims for an increased evaluation for bilateral hearing loss. Document all unsuccessful attempts to obtain such records. 2. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge of the nature, extent and severity of her bilateral hearing loss, and the impact of this conditions on her ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After associating any pertinent, outstanding records with the claims folder, afford the Veteran a VA audiological examination to determine the current severity of her bilateral hearing loss disability. All necessary testing should be administered, with all relevant findings reported. In addition to objective test results, the examiner should fully describe the functional effects caused by the hearing disability in his or her final report and the impact of such on his employability. In addressing the functional effects of the Veteran's hearing loss on her occupational functioning generally, the examiner should consider her employment history, educational background, and day-to-day functioning in relation to her bilateral hearing loss. All findings and conclusions should be set forth in a legible report. 4. Readjudicate the Veteran's claim for a higher rating for her bilateral hearing loss. If the benefit sought on appeal remains denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs