Citation Nr: 1313757 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 08-12 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in January 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was remanded by the Board in December 2012 for additional development, to include providing the Veteran with a new VA audiological examination to determine the probable etiology of his bilateral hearing loss and tinnitus. The claim had previously been remanded in August 2010, August 2011, and February 2012 for similar development. The Veteran was provided with a VA audiological examination in March 2013. As such, the Board finds that VA has substantially complied with the Board's prior remands with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). FINDINGS OF FACT 1. There is competent evidence that relates the Veteran's current bilateral hearing loss to active duty. 2. There is competent evidence that relates the Veteran's current tinnitus to active duty. CONCLUSIONS OF LAW 1. Tinnitus was incurred during active duty. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Tinnitus was incurred during active duty. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for bilateral hearing loss and tinnitus, which constitutes a complete grant of the Veteran's claims. Therefore, no discussion of VA's duty to notify or assist is necessary. The Veteran contends that his currently diagnosed bilateral hearing loss and tinnitus began prior to his separation from active duty service in 1968 and gradually worsened over the years. He has denied any ear infections, ear surgery, or severe head injury, but reported familial hearing loss. He worked as a civilian truck driver following his separation from service in September 1968. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his 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"). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Veteran's service records show that he worked as a construction equipment specialist in the Air Force. At his September 1964 Report of Medical Examination at enlistment, an audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) -5 (5) -5 (5) -- 5 (10) LEFT 15 (30) 0 (10) -5 (5) -- 10 (15) Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. At his May 1968 Report of Medical Examination at discharge, an audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 15 (25) 10 (20) 10 (20) 20 (25) LEFT 5 (20) 0 (10) 0 (10) 15 (25) 20 (25) However, the Veteran did not actually separate from active duty service until September 1968, and a flight surgeon referred him to the otolaryngology clinic for evaluation of a possible ear disease in June 1968. The flight surgeon indicated that the Veteran had progressive hearing loss in his right ear since 1964. In July 1968, the Air Force otolaryngologist indicated that the Veteran was difficult to test, but that he had good puretone thresholds bilaterally through 4000 hertz. There was a 15 to 20 decibel loss in the higher frequencies, which the otolaryngologist indicated was of no clinical import at the time. The otolaryngologist noted that the Veteran was on an H-1 hearing profile and could be processed for separation. The Veteran was afforded a VA audiological examination in December 2006. However, an August 2010 Board remand found that the examiner who conducted the December 2006 VA audiological examination did not consider all the evidence in the claims file prior to reaching his conclusion that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by or due to exposure to noise while in service. Specifically, in explaining why the Veteran's hearing loss and tinnitus disorders were not related to service, the examiner merely stated that the Veteran's May 1968 service discharge physical examination report indicated normal pure-tone thresholds from 500 through 6000 hertz in both ears at the time. However, in doing so, the examiner did not note the subsequent July 1968 service treatment records indicating in-service complaints of right ear hearing loss nor the results of contemporaneous hearing tests. As the examiner apparently did not consider the Veteran's in-service complaints of hearing loss and all the tests performed during service in reaching his conclusion, the Board found his opinion to lack probative value and instructed that the Veteran be provided with an additional VA audiological examination. As the Veteran worked as a construction equipment specialist during service, the examiner was instructed to presume that the Veteran was exposed to noise during service. In his report, the examiner was also instructed to note reviewing all of the Veteran's service treatment records, to include the July 1968 hearing tests and the service examiner's notations related to that test. In accordance with the Board's remand instructions, another VA examination was conducted in September 2010. However, a review of that examination report revealed that it was inadequate for appellate purposes as the Veteran apparently did not cooperate with the examiner and audiometric testing could not be accomplished. As a result, in an August 2011 remand, the Board directed that another VA audiology examination be conducted to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. A VA examination was performed in August 2011 in accordance with the August 2011 Board remand. Unfortunately, a review of that examination report revealed that it too was inadequate for appellate purposes as the examiner used an examination checklist to report his findings, and seemingly rendered conflicting opinions. Specifically, the examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not (less than 50/50 probability) caused by or as a result of acoustic trauma in service. He noted that audiograms in September 1964, May 1968, and July 1968 revealed normal hearing. A review of the discharge audiogram revealed no significant decrease in hearing level during service. The Veteran's hearing was normal upon entrance and at separation from service. The August 2011 examiner summarized by checking off boxes on an examination worksheet, which, as noted above, contradicted each other. As to the etiology of hearing loss, the checklist stated that, "If present is the Veteran's hearing loss at least as likely as not (50% probability or greater) caused by or a result of an event in military service?" The examiner checked the NO box. The rationale was that the claims file was reviewed and hearing loss was less likely as not (less than 50% probability) caused by or as a result of acoustic trauma in service. As to the etiology of tinnitus the examiner checked the box which stated that, "The Veteran had a diagnosis of clinical hearing loss and his or her tinnitus is at least as likely as not (50% probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss." Under rationale he checked the box that stated, "At least as likely as not (50% probability or greater) caused by or a result of military noise exposure." However, he then wrote that there was no evidence of complaints of tinnitus during active service. Further, he noted that tinnitus was not clinically present and therefore was less likely as not caused by or as a result of acoustic trauma in service. As the August 2011 VA examination did not obtain the information requested, the Board returned the appeal to the RO so that another examination could be conducted. The Veteran was again afforded a VA examination in March 2012 in accordance with the February 2012 Board remand. The examiner diagnosed the Veteran as having bilateral sensorineural hearing loss as well as tinnitus. However, the examiner opined that the current hearing loss and tinnitus were less likely than not caused by or a result of the Veteran's military noise exposure because his September 1964 enlistment physical revealed sensitivity within normal limits, and his May 1968 separation physical revealed that his hearing sensitivity was essentially unchanged at the time of separation relative to the time of enlistment. With respect to tinnitus, the examiner indicated that the Veteran's service treatment records did not reveal any report of tinnitus. Unfortunately, the rationale provided by the March 2012 VA examiner was nearly identical to the rationale found to be inadequate by the Board in the December 2006 examination report. That is, both examiners, in explaining why the Veteran's hearing loss and tinnitus disorders were not related to service, merely relied on the Veteran's May 1968 service discharge physical examination report, and did not note the subsequent July 1968 service treatment records indicating in-service complaints of right ear hearing loss. As such, the Board deemed the March 2012 examination report to be inadequate and returned the appeal to the RO so that another examination could be conducted. The Veteran was afforded his most recent VA audiological examination in March 2013, at which time he was diagnosed as having sensorineural hearing loss in the frequency range of 500-4000 hertz, bilaterally, as well as tinnitus. However, the examiner again opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service simply because the September 1964 and May 1968 audiological examinations showed normal hearing bilaterally, with no reference whatsoever to the medical documents dated in June 1968 and July 1968. Similarly, the examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure because the Veteran entered and exited military service with normal hearing bilaterally. Again, in explaining why the Veteran's hearing loss and tinnitus disorders were not related to service, the examiner merely relied on the Veteran's May 1968 service discharge physical examination report, and did not note the subsequent July 1968 service treatment records documenting hearing loss. The Veteran's service treatment records indicate that he had progressive hearing loss in his right ear since 1964, and that he was placed on an H-1 hearing profile. Moreover, he has a current diagnosis of bilateral hearing loss which he relates back to his period of active duty service. The Board reiterates that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition and lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Although tinnitus was not shown or reported during active duty, the Board concedes exposure to acoustic trauma as the Veteran's descriptions of his noise exposure are consistent with his circumstances of service and are competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). In this respect, the Veteran's DD Form 214 reflects that his military occupational specialty was a construction equipment specialist. Accordingly, the Board finds the Veteran has established an in-service event for the purpose of service connection. The Veteran asserts that he has experienced ringing in his ears since approximately 1965. Such lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. at 469. In addition, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The presence of tinnitus is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, the Board finds the Veteran has established a current disability. With evidence of a current disability and an in-service event, the remaining element required to establish service connection is a nexus between the current disability and the in-service event. During the pendency of this appeal, the Veteran asserted that he experienced hearing loss tinnitus since active duty. Accordingly, the Board will consider the lay evidence submitted by the Veteran regarding his audiological symptoms during and since active duty as well as the medical opinions of record. Here, there are conflicting medical opinions of record regarding a nexus between the Veteran's current tinnitus and active duty service. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102 (2012). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, the Board affords little probative value to all of the VA examiners' opinions obtained during the development of these claims with respect to a nexus between the Veteran's current hearing loss and tinnitus and his active duty service. Here, as discussed above, the VA examiners repeatedly based their opinions solely on the fact that the Veteran's audiological results were within normal limits in September 1964 and May 1968, with no reference to or consideration of the subsequent audiological documents dated in June 1968 and July 1968, prior to his discharge from active duty service in September 1968. The credible and competent evidence establishes that the Veteran experienced hearing loss and tinnitus in service, that he still has these disabilities, and that he has had them consistently since service. The Board acknowledges that the evidence regarding whether the Veteran's hearing loss and tinnitus were incurred in active duty is conflicting. However, given the Veteran's in-service noise exposure and resulting hearing problems, the Board finds the evidence is at least in relative equipoise. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds the Veteran's current bilateral hearing loss and tinnitus were incurred in active duty. Therefore, service connection for bilateral hearing loss and tinnitus is warranted. Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs