Citation Nr: 1313710 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 08-29 705 ) 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: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service from January 1959 to July 1963. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. When this matter was initially before the Board in April 2011, the Board denied service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board's April 2011 decision to the United States Court of Appeals for Veterans Claims (Court), which in a November 2012 order, granted the parties' joint motion for remand, vacating the Board's April 2011 decision and remanding the case for compliance with the terms of the joint motion. 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 bilateral hearing loss had its onset in service. 2. The Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran's favor, bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1101, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). 2. Resolving doubt in the Veteran's favor, tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the fully favorable decisions contained herein, the Board finds that no further discussion of the VCAA provisions is required. The Veteran contends that he developed bilateral hearing loss and tinnitus as the result of his military service. Specifically, he maintains that he developed bilateral hearing loss and tinnitus due to his service as a helicopter pilot during which time he was exposed to loud noises from the rotors and the "static of transmissions" while listening to the helicopter's radio. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection must be considered on the basis of the places, types and circumstances of a Veteran's service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed at 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including sensor neural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With hearing loss claims, VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 are less than 94 percent. 38 C.F.R. § 3.385. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the 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). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). As to current disabilities, the record shows the Veteran being diagnosed with bilateral hearing loss as defined by VA as well as tinnitus since 2007. See July 2007 treatment records and June 2011 letter from James S. Atkins, Jr., M.D.; VA examination dated in December 2007; and March 2013 letter from Jennifer Steed, Au.D. These opinions are not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, the Board also finds that the record contains competent and credible evidence of current disabilities. See Hickson, supra. As to evidence of an in-service incurrence of an injury, the Veteran's DD Form 214 confirms that he served as a rotary wing aviator. Furthermore, the Board finds that the Veteran is competent to report on having trouble hearing people talk and ringing in his ears during service. Given the Veteran's occupational specialty, the Board concedes that he had significant noise exposure during service. Accordingly, the Board also finds that the record contains competent and credible evidence of an in-service injury. Therefore, the question in this case turns on whether the Veteran's current disabilities are related to the injury in service. In this regard, the December 2007 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by or a result of noise trauma in the army because several of his in-service audiograms indicated normal hearing bilaterally and tinnitus started five to seven years ago. On the other hand, Dr. Atkins in July 2007 and again in June 2011 opined that the Veteran's current bilateral hearing loss was due to his military service. Specifically, in July 2007 the Veteran complained of a long standing problem with hearing loss, worse in his left ear, which he believed was caused by his service as a helicopter pilot while in the Army. The Veteran denied having tinnitus. Dr. Atkins thereafter opined that the Veteran's current bilateral hearing loss was due to his in-service history. In June 2011, Dr. Atkins reported that he had reviewed the Veteran's DD 214 which confirmed that he was a rotary wing aviator and thereafter opined that the amount of noise exposure that the claimant had while serving as a helicopter pilot is consistent with his current level of hearing loss. Dr. Atkins thereafter opined that an attached article entitled "An Analysis of Noise Induced Hearing Loss in Army Helicopter Pilots," further supports his medical opinion that the Veteran's current hearing loss is due to his military service. Similarly, in March 2013 Dr. Steed, after noting the Veteran's complaints of tinnitus and bilateral hearing loss, his in-service work history as a helicopter pilot, and his post-service work history in the insurance industry, opined that his military-related noise exposure was likely a contributing factor in some way to his overall hearing loss and tinnitus. Initially, the Board does not find the VA examiner's opinion credible evidence because it improperly relied solely on negative evidence as its bases. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). The Board also does not find the opinions credible because the examiner did not provide bases for the opinions. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence). On the other hand, the Board finds that Dr. Atkins and Dr. Steed's opinions both competent and credible evidence as to the origins of the Veteran's bilateral hearing loss and/or tinnitus because they are factually accurate, fully articulated, and provide sound reasoning for their conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). As to tinnitus, the Board also finds that the Veteran is both competent and credible to provide an opinion as to its origins. See Davidson. Accordingly, the Board finds that the most competent and credible evidence of record also shows medical evidence of a nexus between an in-service injury and the present disabilities. Therefore, the Board finds that the record shows medical evidence of current disabilities (i.e., his bilateral hearing loss and tinnitus), competent and credible evidence of an in-service injury (i.e., significant noise exposure during service), and medical evidence establishing a link between the current disabilities and military service. 38 C.F.R. § 3.303(a). Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that the preponderance of the evidence supports a grant of service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs