Citation Nr: 1316636 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 06-06 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from August 1967 to May 1971. The Veteran served in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The issue on appeal was previously reopened and remanded by the Board in September 2012 for further evidentiary development of requesting authorization from the Veteran to obtain private treatment records and providing a medical examination and opinion for bilateral hearing loss. This was accomplished, and the claim was readjudicated in a February 2013 Supplemental Statement of the Case (SSOC). For this reason, the Board concludes that there was compliance with its prior instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board has reviewed the Veteran's physical claims folder, as well as the Veteran's electronic folder through Virtual VA, to ensure a complete review of the evidence in this case. In March 2013, the Veteran submitted an informal claim for service connection for hypertension, including as secondary to service-connected diabetes mellitus. The issue has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it. The issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran was exposed to loud noise while in service. 2. The Veteran currently has hearing loss in each ear to an extent recognized as a disability for VA disability compensation purposes. 3. Symptoms of bilateral hearing loss have been continuous since service separation. 4. The Veteran's current bilateral hearing loss is etiologically related to exposure to loud noise in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the claim on appeal. Inasmuch as this Board decision constitutes a full grant of the service connection claim being addressed, there is no reason to explain how VA has fulfilled the VCAA duties to notify and assist in this case. Service Connection Laws and Regulations 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. § 1110; 38 C.F.R. § 3.303. Bilateral hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore, 38 C.F.R. § 3.309(b) applies to the claim for bilateral hearing loss. See 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 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; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 2002). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Bilateral Hearing Loss The Veteran asserts that he has current bilateral hearing loss that is the result of noise exposure while working on the flight deck and being exposed to loud noise from jet engines without hearing protection in service. First addressing the question of current disability, the Board finds that the Veteran has a bilateral hearing loss disability. The Board finds that June 1984, May 2003, September 2005, and October 2012 VA audiological examinations establish hearing loss "disability" in each ear as defined in 38 C.F.R. § 3.385. On the question of in-service injury or disease, the Board finds that the Veteran is shown to have been exposed to loud noise (acoustic trauma) to both ears in service. In an August 1985 statement, the Veteran wrote that he worked on an aircraft maintenance crew and was exposed to loud noises associated with working on the flight deck and being exposed to loud noise from jet engines without hearing protection. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno, 6 Vet. App. at 469-70 (finding lay testimony competent when it concerns features or symptoms of injury or illness). The Board acknowledges that the Veteran performed naval duties aboard the U.S.S. Ranger which exposed him to significant aircraft noise including during combat operations. The Veteran also submitted a Naval Achievement Citation, which reflected that the Veteran had a constant presence in the work center of the Maintenance Department and upon the flight deck. The Board places a high probative value on the Veteran's statements of constant exposure to noise from his active duty service associated with working on the flight deck and being exposed to loud noise from jet engines without hearing protection. Service treatment records include audiology results from two different times. For purposes of comparison, prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Here, there is no indication in the Veteran's enlistment examination report that the audiometric findings from that examination were being expressed under the current ANSI standard. The Board notes the presence of the word "Rudmose" over the April 1967 service enlistment audiometer readings. However, this term merely refers to the type of audiometer used, and does not reveal whether testing was performed using ASA or ANSI standards. In the absence of such indication and given that the enlistment examination was performed before the ANSI standard was adopted in November 1967, the Board presumes that the pure tone thresholds from the enlistment examination are expressed under the previous ASA standard. In order to facilitate data comparison, the older ASA standards (which are expressed outside parentheses on the left) have been converted to ISO-ANSI standards (which are expressed by the figures in parentheses on the right)). The April 1967 active duty enlistment examination recorded puretone thresholds at the test frequencies of 500, 1000, 2000, and 4000 Hertz in the right ear of 0 (15), 0 (10), -5 (5), and -10 (-5) decibels, respectively. Puretone thresholds at the test frequencies of 500, 1000, 2000, and 4000 Hertz in the left ear were 0 (15), 0 (10), 0 (10), and 5 (10) decibels, respectively. In a January 1970 service treatment record, the Veteran reported that his ears were infected and that he felt pressure in his ears. The service examiner opined that the Veteran had early bilateral otitis media. The June 1970 Naval Enlisted Scientific Education Program (NESEP) examination recorded puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear of 15, 10, 0, 0, and 5 decibels, respectively. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 20, 15, 5, 0, and 5 decibels, respectively. The April 1971 service separation audiological examination shows scores of 15 out of 15 in the whisper voice test bilaterally. Audiometric testing was not conducted at service separation, so no audiometric test scores are available to measure the degree of hearing loss at service separation. Audiometric testing is undoubtedly more precise than a whisper voice test, although the whisper voice test is an alternative means of testing hearing. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992). The absence of service treatment records showing in-service audiometric evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board finds that the whispered voice test is a subjective and blunt measure of hearing loss, and is of little probative value in this case. The whispered voice test cannot measure audiometric threshold shifts, can neither establish nor rule out the presence of a hearing loss disability as defined in 38 C.F.R. § 3.385, and is not capable of capturing hearing loss that may have begun in service following acoustic trauma. Particularly in light of the Court's holding in Hensley v. Brown, 5 Vet. App. 155, 159 (1993), that 38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first met the regulation's requirements for hearing loss disability after service, the service examiner's indication that the whisper test that showed normal hearing at service separation is of little probative value. The Board next finds that the weight of the evidence demonstrates that bilateral hearing loss symptoms began in service and have been continuous since service separation in May 1971. In a November 1977 private treatment record, the Veteran was diagnosed with bilateral serious otitis media. A November 1981 private audiogram reflected mild hearing loss in each ear. In the June 1984 VA general medical examination, the Veteran reported that he was exposed to loud noise in service from working with aircraft engines for 27 months and that his hearing loss began around 10 to 12 years ago. In a November 1984 statement, the Veteran wrote that he had current hearing loss that began in service and had continued since service separation. In an August 1985 statement, the Veteran's spouse wrote that his hearing was bad upon his return from active duty service. The Veteran and his spouse are competent to report the onset of hearing loss at any time. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Barr; see also Layno, 6 Vet. App. at 469-70 (finding lay testimony competent when it concerns features or symptoms of injury or illness). The Board has no basis to question the Veteran's credibility. In a January 1986 private audiological opinion, the Veteran's treating physician reported that he had been treating the Veteran since he was a child and that his hearing was damaged when he returned from active duty service and had progressively worsened. Private audiograms dated from April 1985 to August 1990 reflect bilateral hearing loss. In a May 2003 VA audiological assessment, the Veteran reported a history of military noise exposure. The Veteran also reported a history of occupational noise exposure while working for a railroad company; he reported that he sat in an office right next to the diesel trains. The Veteran was diagnosed with mixed conductive and sensorineural hearing loss. In a February 2006 VA audiology note, the Veteran reported a history of hearing loss. In an October 2006 private audiological evaluation, the Veteran reported noise exposure while working as a clerk for the railroads, because the diesel locomotives were left with their engines running outside the door of his office. The Board further finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current bilateral hearing loss is related to exposure to acoustic trauma in service. Although the Veteran was not specifically diagnosed with hearing loss disability of either ear in active service, such was not required. See Ledford, 3 Vet. App. at 89. The evidence of record demonstrates acoustic trauma in service, and some worsening of hearing acuity in both ears during service, as reflected by higher puretone thresholds for specific frequencies in both the right and left ear at the service audiological examination conducted in June 1970. The Board finds that such audiometric threshold increases in hearing acuity at various frequencies in both ears during service reflects evidence of "chronic" symptoms of left and right ear hearing loss in service, as contemplated by 38 C.F.R. § 3.303(b). 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." 38 C.F.R. § 3.303(b). In a January 1986 private opinion, the Veteran's treating physician opined that prior to service the Veteran did not have otitis media or any other ear ailment and that since service he has been treated repeatedly for otitis media. The private examiner also opined that the aircraft noise could definitely be a factor of the Veteran's hearing loss. In a February 2006 private audiological opinion, the private examiner opined that the Veteran's hearing loss was probable and possible from some exposure to loud noise at work when he was a railroad employee and worked in close proximity to diesel engines. The February 2006 private examiner opined that the overwhelming majority of the hearing loss seems to be secondary to an irreversible sensorineural hearing loss. In a February 2006 VA audiological opinion, the VA examiner opined that the Veteran's hearing was worse at the 1970 service audiological examination than it was when the Veteran enlisted in service in 1967. In the October 2012 VA audiological examination, which weighs against the Veteran's claim, the VA examiner opined that it was less likely than not that bilateral hearing loss was related to active duty service. The VA examiner opined that the evidence of record did not show any connection between the single treatment during active duty for an ear infection and the subsequent history of middle ear problems and otosclerosis. The VA examiner also opined that the June 1970 service audiological examination showed normal hearing at all frequencies and showed no hint of noise notch in the higher frequencies that might be exhibited due to noise exposure. Where there are conflicting medical opinions regarding the Veteran's medical condition, the Board is required to thoroughly address, carefully analyze and reconcile all relevant evidence in the record. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board must weigh the probative value of medical opinions and in doing so, may favor one medical opinion over the other)). The Board finds that the January 1986 private opinion is of little probative value. The Board notes that the Court has declined to adopt a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of a VA examiner or another doctor. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467-471-3 (1993). The treating physician opined that the aircraft noise could definitely be a factor of the Veteran's hearing loss. A physician's statement framed in terms such as "may" or "could" is not probative. Warren, 6 Vet. App. at 6. The Board finds that the February 2006 private opinion is of little probative value. The private examiner opined that the Veteran's hearing loss was probable and possible from some exposure to loud noise at work when he was a railroad employee. Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert, 5 Vet. App. at 33; see also Beausoleil, 8 Vet. App. at 463; Libertine, 9 Vet. App. at 523. The Board finds that the February 2006 VA opinion is probative. The VA examiner examined the service treatment records and opined that the Veteran's hearing was worse at the 1970 service audiological examination than it was when the Veteran enlisted in service in 1967. This opinion supports the Board's previous finding, noted above, that such audiometric threshold increases in hearing acuity at various frequencies in both ears during service reflects evidence of "chronic" symptoms of left and right ear hearing loss in service, as contemplated by 38 C.F.R. § 3.303(b). The Board finds that the October 2012 VA opinion is of little probative value. The examiner opined that the June 1970 service audiological examination showed normal hearing at all frequencies; however, the fact of worsening of hearing acuity in service, which is reflective of "chronic" symptoms of hearing loss in service, as indicated by elevated audiometric threshold test scores at the June 1970 service audiological examination, was not noted in the October 2012 VA opinion. The characterization of the worsened audiometric test scores in service as "normal" does not recognize the clinically measured worsening of bilateral hearing loss during service. The Board further finds that there is competent evidence of a relationship between the Veteran's currently diagnosed bilateral hearing loss and active service. Specifically, the Veteran reported chronic symptoms of hearing loss in service and that he has experienced those same symptoms since service separation. The same symptoms formed the later diagnosis of bilateral hearing loss (disability). See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (finding that lay statements are competent on in-service symptoms and post-service symptoms of dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus that later formed the basis of diagnosis of Meniere's disease); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (continuity of post-service symptoms is "a substitute way of showing" in-service incurrence and medical nexus). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, on the basis of acoustic trauma in service, and chronic and continuous symptoms of hearing loss that were later diagnosed as such, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs