Citation Nr: 1310679 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-29 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from January 1962 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In November 2010, the Veteran and his wife testified at a hearing before the undersigned. The Board denied the Veteran's claim in an April 2011 decision. However, the Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court), which vacated the Board's decision pursuant to a memorandum decision and remanded the matter back to the Board. Specifically the Court determined that the Board's assessment of the credibility of the Veteran and his wife was contradictory. The Court determined that this was a material issue that prevented judicial review. The Veteran submitted a private favorable medical opinion addressing his hearing loss and tinnitus claims in May 2011. He also submitted a waiver of Agency of Original Jurisdiction review. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was incurred in, or caused by, his military service. 2. The Veteran's tinnitus was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1132, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board grants service connection for bilateral hearing loss and tinnitus. These awards represent a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. The Veteran contends that he has bilateral hearing loss and tinnitus due to his military service. Specifically, at the personal hearing the Veteran claimed that as a infantrymen he was exposed to small arms, machinegun, and rocket fire on a daily basis while on active duty and that this noise exposure as well as the noise he was exposed to flying in light transportation aircraft without hearing protection caused his current hearing loss and tinnitus. It is also requested that the Veteran be afforded the benefit of the doubt. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter). In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see generally 38 C.F.R. § 3.303. Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, --- F.3d ----, No. 2011-7184, 2013 WL 628429 *5 (Fed. Cir. February 21, 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Sensorineural hearing loss is an organic disease of the nervous system, which is a chronic disease listed under 38 C.F.R. § 3.309(a). Therefore, service connection for sensorineural hearing loss can be established by showing chronic symptomatology since service. Sensorineural hearing loss also may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 38 U.S.C.A. § 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" when evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). "Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer." Jandreau, 492 F.3d at 1377, n4. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lastly, a layperson may also be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology. Hickson, 12 Vet. App. at 253. 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."). Turning now to the facts of this case, at the outset, the Board notes that the Veteran's service records show that he was a light weapons infantryman. Thus, exposure to acoustic trauma in service is conceded. Under VA regulations, impaired hearing is considered 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 threshold for normal hearing is 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Court has indicated that, "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Court held that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. The Court further held that 38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected. Hensley at 159. It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service. The service treatment records show that at his December 1963 separation examination, the Veteran reported a history of "running ears." However, the Veteran's service treatment records, including the December 1963 separation examination, are negative for complaints or treatment for symptoms of and/or a diagnosis of hearing loss as defined by VA or tinnitus. In fact, at the December 1963 separation examination it was specifically noted that on examination his hearing was 15/15 on both whispered and spoken voice testing. An audiological evaluation at separation also showed that, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 / 0 LEFT 0 0 0 / 0 Even though there is no hearing loss disability shown at separation from service, service connection may nevertheless be established by showing that any present hearing loss disability is related to service. See Hensley, 5 Vet. App. at 160. As the exposure to acoustic trauma in service is conceded, the determinative issue is whether the Veteran has bilateral hearing loss and tinnitus as a result of this in-service noise exposure. In April 2008, a private audiological evaluation shows a diagnosis of mild to severe hearing loss for important speech frequencies and tinnitus. It also was noted that the Veteran had a significant history of loud noise exposure as a result of his military experiences. On the authorized VA audiological evaluation in November 2008, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 40 80 85 LEFT 20 20 45 85 85 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The diagnosis was mild to severe high frequency sensorineural hearing loss in the right ear, and moderate to severe high frequency sensorineural hearing loss in the left ear. The Veteran also reported constant, moderate, subjective tinnitus bilaterally for 12 years. As the record shows a diagnosis of hearing loss for VA purposes, and a diagnosis of tinnitus, the next issue to be resolved is whether these disabilities are related to the Veteran's exposure to acoustic trauma in service. After a review of the record on appeal and an examination of the claimant, the November 2008 VA examiner determined that the Veteran's hearing loss and tinnitus were not related to service. The examiner reached this conclusion because normal hearing was documented at the time of the Veteran's separation from service, tinnitus was not documented in any of the service treatment records, and because the Veteran told him that his tinnitus only started approximately twelve years ago. The Veteran also submitted a medical opinion from a private audiologist in May 2011. The audiologist noted that the Veteran's audiological evaluation that had been performed in April 2008 showed mild to severe sensorineural hearing loss from 1,000 to 8,000 Hz in both ears. Before and after his military service, the Veteran denied any significant noise exposure without the benefit of ear protection. During his military service, however, the Veteran was exposed to extremely loud sounds as a result of his duties as rocket launcher, and machine and rifle gunner. Additionally, the Veteran was exposed to loud aircraft during troop transportation. All of these were without the benefit of hearing protection. The audiologist noted that the Veteran's military records indicated that his hearing sensitivity both at induction and separation was measured solely by a "whisper test." The audiologist further noted that auditory research had shown that this type of test was not reliable and was often inaccurate due to the inability to standardize the presentation level of the speech stimuli. In addition, the audiologist noted that equally compelling, research had also shown that many hearing impaired persons passed the whisper test while they would not pass a frequency specific to audiometric evaluation. Thus, the audiologist determined that the whisper test did not provide a standardized frequency range with which to objectively measure hearing sensitivity, nor could it differentiate between the ears. The audiologist also determined that the Veteran's post-service work noise exposure had been misrepresented, as one involving exposure to loud noises. The audiologist acknowledged that the Veteran's work occasionally involved loud sounds but that the Veteran was also careful to use ear protection during those times. On the other hand, ear protection was not provided or available during the Veteran's military loud noise exposure. Thus, the audiologist found that since it was well-documented that continued loud noise exposure could cause hearing loss and tinnitus and that the Veteran's military hearing tests could not be relied upon for accurate frequency-specific information, it was reasonable to conclude that the Veteran's significant bilateral hearing loss and tinnitus were the result of acoustic trauma he experienced while serving in the military. The Board notes that, in adjudicating a claim, it 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, the United States Court of Appeals for Veterans Claims (Court) has declared that, in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). However, based on the foregoing, the Board finds that the evidence supports a finding that the Veteran's hearing loss and tinnitus were caused by his in-service noise exposure. In making this determination, the Board notes that the Veteran is competent to report the symptoms of hearing loss and tinnitus. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is also competent to report that he was exposed to loud noise while firing weapons and traveling in light aircraft while on active duty. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). In this regard, the Board highlights that competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). It is within the Veteran's realm of personal knowledge whether he was exposed to noise during service and has experienced difficulty hearing and tinnitus since service. Moreover, the Board finds the Veteran's reports of in-service noise exposure and a continuity of symptomatology since service to be credible. His records are internally consistent, and it is facially plausible that he was exposed to loud noise while firing weapons and traveling in light aircraft, especially given his duties as light weapons infantryman in the Army. In this regard, the Board points out that the Veteran has consistently reported the incidents in service that caused his hearing loss and tinnitus. The Board notes that the Veteran has made somewhat inconsistent statements regarding the onset of his tinnitus by asserting on the one hand that he has experienced tinnitus since service, while noting on examination in 2008 and during the Board hearing that he had experienced tinnitus 10 to 15 years ago. But this discrepancy is not enough to undermine the probative value of the Veteran's overall statements. The Veteran's wife also testified that she had known the Veteran since 1964 and that she had observed him experiencing hearing loss since that time, in that he had trouble hearing her speak. As such, the Board finds that the Veteran's and his wife's statements are mostly credible and probative, and add weight to the overall claim. See Struck v. Brown, 9 Vet. App. 145, 155-156 (1996). The Board also finds it significant that a private audiologist after reviewing the pertinent information in the claims file has determined that the Veteran's current hearing loss and tinnitus are consistent with his exposure to loud noise while in the military. The audiologist considered the extent of noise exposure in the military and compared this with the Veteran's noise exposure after the military. The audiologist also commented that the whisper tests performed in service were not accurate methods of measuring any hearing loss; although it is significant that the Veteran also is shown to have had an audiological examination in service, which also did not demonstrate hearing loss. As noted above, however, the lack of a diagnosis of a hearing loss disability in service is not fatal to a service connection claim. Hensley, supra. The opinion of the November 2008 VA examiner is not a probative opinion regarding the hearing loss, because the examiner based his opinion on the fact that the service treatment records did not show a diagnosis of hearing loss in service. However, VA laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the U.S. Court of Appeals for Veterans Claims has held where there is no evidence of the veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service . . . ." Hensley, supra, (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Therefore, the critical question is whether the Veteran's current hearing loss and/or tinnitus disability is causally related to service. The examiner commented that the Veteran's tinnitus was not related to service because he only reported onset 10 to 12 years ago. While this is a probative rationale for finding that the tinnitus was not related to service, when weighed against the private medical opinion in May 2011 that found that the Veteran's tinnitus was related to military service, based on his significant noise exposure in service, and lack of significant noise exposure after service, both opinions are more or less entitled to equal weight. In other words, there is no significant reason shown to value one opinion over the other. In these instances, where the evidence is equally-balanced, the benefit-of-the-doubt goes to the Veteran. See 38 C.F.R. § 3.102. After a careful review of the all of the medical and lay evidence of record, the Board, in its role as a finder of fact, finds that the Veteran's reports of in-service noise exposure, continuity of hearing loss symptomatology since service, and the medical opinion relating the hearing loss and tinnitus to service are persuasive evidence in favor of service connection. Accordingly, 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 bilateral hearing loss and tinnitus is granted. ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs