Citation Nr: 1314522 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 09-23 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that in relevant part denied service connection for hearing loss. Also on appeal is a January 2009 RO rating decision that denied service connection for tinnitus. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in March 2011. A transcript of the hearing is of record. In January 2012 the Board issued a decision that granted service connection for migraines but denied service connection for a cervical spine disability, for hearing loss and for tinnitus. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2012 the Court issued an Order that granted a Joint Motion of the Parties to vacate the Board's denial of service connection for hearing loss and tinnitus and return those two issues to the Board for further consideration. FINDING OF FACT Probative medical opinion is at least in equipoise in stating the Veteran's hearing loss and tinnitus are due to noise exposure during service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5017(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS In the decision below, the Board grants the Veteran's request for service connection for hearing loss and tinnitus. As this represents a complete grant of the benefits claimed, no discussion of VA's duty to notify and assist is necessary. Legal Principles Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after January 1, 1947, and manifests sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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, 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley, 5 Vet. App. 155, 159. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis Service treatment records (STRs) include an enlistment physical examination dated in September 1973 showing the Veteran as clinically "normal" on examination except for defective vision. Audiometer results were shown on the enlistment physical. STRs also reflect that the Veteran was enrolled in the hearing conservation program, indicating exposure to acoustic trauma during service. Periodic audiograms appear to show a decrement in hearing acuity over time during service. The Veteran had a service separation physical examination in June 1993. In a self-reported Report of Medical History the Veteran denied hearing loss. Audiological scores were shown on the separation examination which, when compared to the scores in the enlistment examination, appear to show a mild loss in hearing acuity. In his original claim for service connection, received in January 2008, the Veteran asserted that his hearing loss began in October 1989. A VA-contracted audiological evaluation in January 2008 states that the Veteran complained of hearing loss and constant bilateral tinnitus that he felt were due to exposure to acoustic trauma during service. The Veteran described onset of hearing loss "back a number of years ten plus." The Veteran denied any post-service activities that could contribute to hearing loss and denied family history of genetic hearing loss. His audiometric scores were within the VA criteria for hearing loss disability per 38 C.F.R. § 3.385. The audiologist diagnosed bilateral noise-induced sensorineural hearing loss (SNHL) and bilateral subjective tinnitus secondary to noise exposure, but did not provide an opinion as to the etiology of either disorder. The Veteran had another VA audiological evaluation in July 2008, performed by an audiologist who reviewed the claims file and especially noted the audiograms associated with STRs. The Veteran reported hearing loss and tinnitus with onset in the late 1980s. The Veteran reported in-service acoustic trauma of 20 years exposure to jet engine noise plus 10 years exposure to noise associated with welding; he denied post-service acoustic trauma. Otoscopic examination of the ears was unremarkable. Audiological testing showed bilateral SNHL and the examiner also noted bilateral subjective tinnitus. In regard to etiology of hearing loss, the audiologist stated that the Veteran's hearing in service, to include on separation, was within normal limits per VA standards, with no indication of threshold shift at the time of his separation from service. Medical literature regarding noise-induced hearing loss states the once exposure to noise is discontinued there is no significant further progression of hearing loss that resulted from noise exposure. Therefore, it was the audiologist's clinical opinion that the Veteran's hearing loss is not likely related to service and most likely a post-service occurrence. Because the hearing loss is beyond age norms, and without reported significant civilian noise exposure or other potential non-military etiologies, it was not possible to determine the etiology of hearing loss without resorting to mere speculation. The audiologist stated the Veteran's tinnitus was consistent with hearing loss and likely due to the same etiology, but since the hearing loss appeared to be a post-service occurrence it was also impossible to determine the etiology of the tinnitus without resorting to mere speculation. In his notice of disagreement (NOD), filed in September 2008, the Veteran cited Air Force studies showing acoustic trauma associated with welding had been previously underestimated and that welders have a higher-than-expected incidence of hearing loss. The Veteran testified before the Board in March 2011 that he was exposed during service to high-pitched noises associated with welding as well as to the sound of jet engines on the flight line; while wearing the welding mask the Veteran was unable to wear hearing protection so he was fully exposed to noise. The Veteran noticed both hearing loss and tinnitus during service and both conditions became worse after discharge from service. The Veteran denied significant recreational or occupational noise exposure after discharge from service and stated his conclusion that his noise-induced hearing loss could only be due to service. In December 2012 the Veteran was reexamined by the VA audiologist who had performed the earlier evaluation in January 2008 cited above, in which no opinion was rendered in regard to etiology. The audiologist now stated an opinion that the Veteran's hearing loss and tinnitus were the result of exposure to excessive, loud jet aircraft noise while the Veteran was working on the flight line. The audiologist did not provide any clinical rationale for his opinion. The Board referred the file to the Veterans Health Administration (VHA) for review by a Doctor of Audiology. The review was performed in April 2013. The VHA reviewer stated the Veteran's STRs included 7 audiological evaluations that were performed while the Veteran was working as a welder, and 3 subsequent audiological evaluations performed after the Veteran was assigned to duties in base training management. The reviewer stated that these audiological evaluations showed a consistent threshold shift; only the retirement evaluation in 1993 failed to show the shift. The reviewer stated the retirement physical in 1993 was not reliable, since it is highly unlikely the Veteran's hearing would have improved back to levels equivalent to those shown at service entrance; further, the 1993 hearing results were incongruent with the other evaluations shown in STRs over time. In sum, the VHA reviewer concluded that it is at least as likely as not that hearing loss and tinnitus are caused by or the result of service. Review of the file shows there is conflicting medical opinion in regard to whether the Veteran's claimed disabilities are related to service. The July 2008 VA audiologist report asserts an opinion against service connection, while the December 2012 VA audiological report and the April 2013 VHA report provide favorable opinions. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. 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. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The December 2012 VA audiological report provides a fully-articulated opinion, but the audiologist provided nothing in the way of reasoned analysis. The Board accordingly considers that opinion to have low probative value, per Nieves-Rodriguez. Turning to the conflicting opinions of July 2008 and April 2013, both opinions were authored by competent professionals who had a full factual predicate (and cited to the facts on file in support of their conclusions); both opinions include fully-articulated opinions and reasoned analyses. Thus, both opinions are probative under the standards of Nieves-Rodriguez. However, the VHA opinion is more persuasive in that it more fully discusses the hearing shifts documents in STRs and relates those shifts to the ultimate opinion. In sum, the Board has found that the medical evidence is at least in equipoise in showing that the claimed hearing loss and tinnitus disorders are due to or aggravated by service. With resolution of the doubt in favor of the Veteran, the criteria for service connection are met. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs