Citation Nr: 1310433	
Decision Date: 03/29/13    Archive Date: 04/09/13

DOCKET NO.  10-49 736	)	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:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

David Gratz, Counsel



INTRODUCTION

The Veteran served on active duty from February 1964 to February 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.


FINDINGS OF FACT

1.  Bilateral high frequency sensorineural hearing loss had its onset in service.

2.  Tinnitus had its onset in service.


CONCLUSIONS OF LAW

1.  The criteria for establishing entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(d), 3.385 (2012).

2.  The criteria for establishing entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1131, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants service connection for bilateral high frequency sensorineural hearing loss and tinnitus, which represents a complete grant of the benefits sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

The Veteran maintains that his bilateral hearing loss and tinnitus result from his exposure to relatively high amounts of acoustic trauma during his service as an aviator.  See March 2012 Informal Hearing Presentation (IHP), p. 2.  His DD Form 214 confirms that his military specialty title was Fixed Wing Aviator.

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).  The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).

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 all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2).  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).  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 the 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 credible, the Board may properly consider the 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.  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.").

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  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 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.  38 C.F.R. § 3.385.

The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service.  Hensley, supra, at 159.

The Board finds that the evidence supports an award of service connection for bilateral hearing loss and tinnitus.  First, the Veteran's private audiologist, J. Caudle, Au.D., provided current diagnoses of tinnitus and bilateral high frequency sensorineural hearing loss with audiometric thresholds which qualify as a hearing disability in March 2010, during the pendency of the claim.  38 C.F.R. § 3.385.  Specifically, Dr. Caudle performed an audiogram in March 2010, with the following results:

Mar. 2010


HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
15
35
45
LEFT
10
20
25
40
45

The Veteran's bilateral hearing loss meets the threshold for cognizable hearing loss under 38 C.F.R. § 3.385 because it is 40 decibels or greater at 3000 and 4000 Hz in the left ear, and at 4000 Hz in the right ear.

Second, as the RO recognized in the October 2010 statement of the case, the Veteran's military occupational specialty of aviator warrants the finding that he was subjected to noise exposure in service.

Third, Dr. Caudle's March 2010 opinion links the claimed in-service acoustic trauma to the current diagnosed disability.  Dr. Caudle diagnosed the Veteran with mild high frequency sensorineural hearing loss in both ears, and tinnitus.  She noted the Veteran's report of exposure to excessive noise levels from various aircraft engines, including light fixed wing and helicopters, and found that:

Based on my examination, my interview with [the Veteran] regarding noise exposure in the military, and lack of hearing testing upon separation from service, I feel it is at least as likely as not that [his] hearing loss and associated chronic and constant tinnitus was [sic] caused by or contributed to by noise exposure while in the service.

Dr. Caudle further explained that tinnitus is most commonly associated with hearing loss due to hair cell damage, and is often reported in cases of prolonged noise exposure.  The Board finds Dr. Caudle's opinion and rationale both competent and credible based on her qualifications and the reasoning of the opinion.  38 C.F.R. § 3.159(a)(1).

The Board acknowledges that some contrary evidence is of record, but finds that it is entitled to less probative weight than the evidence above, for reasons persuasively argued by the Veteran's representative in his March 2012 Informal Hearing Presentation.  Specifically, in reporting the pertinent contents of the Veteran's service treatment records, the VA examiner found that "Audiometric thresholds were listed as 15/15 on separation audiogram [dated] 24 Jan[uary 19]67."  The April 2010 VA examiner further found right ear hearing loss which did not meet the criteria for a disability under 38 C.F.R. § 3.385, and opined that the Veteran's bilateral hearing loss and tinnitus is less likely than not related to service because he reported them more than 40 years after service.  The April 2010 VA audiogram results were as follows:

Apr. 2010


HERTZ



500
1000
2000
3000
4000
RIGHT
5
15
15
30
35
LEFT
5
15
15
35
40

With respect to the VA examiner's report that the Veteran's right ear hearing loss does not meet the criteria for a disability under 38 C.F.R. § 3.385, the Board finds that the probative value of the March 2010 private audiogram and the April 2010 VA audiogram are essentially in equipoise.  38 C.F.R. § 3.102.  Both examination results show relatively similar trends and results, suggesting that both are within an accurate range.  Moreover, the Veteran's right ear was shown to miss the threshold at 4000 Hertz by only 5 decibels on the VA examination, and to exceed it by only 5 decibels on the identical frequency in the private examination performed one month earlier.  As such, the Board attributes the benefit of the doubt on that question to the Veteran.

With respect to the VA examiner's negative nexus opinion, the Board finds that it warrants less probative weight than Dr. Caudle's opinion because the report contains a pertinent yet erroneous fact, namely, that the Veteran had audiometric thresholds of 15/15 on his January 1967 separation audiogram.  In fact, the January 1967 medical examiner's finding of 20/15-not 15/15-pertained to the Veteran's vision, and the examiner left the sections pertaining to both hearing and audiometer readings blank.  The VA examiner's error in considering the Veteran's service treatment history diminishes the probative value of her negative nexus opinion.  Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (the Board must reject medical opinions that are based on incorrect facts).  By contrast, Dr. Caudle's opinion contains no such error of fact.  Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given.  Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999).

Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus and bilateral high frequency sensorineural hearing loss are related to service.  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus and bilateral high frequency sensorineural hearing loss.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral high frequency sensory-neural hearing loss is granted.

Service connection for tinnitus is granted.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs