Citation Nr: 1319368 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 10-38 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January February 1952 to November 1953. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2010 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri, which denied service connection for bilateral hearing loss and tinnitus. Please note 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 has currently diagnosed bilateral hearing loss and tinnitus. 2. The Veteran was exposed to loud noises (acoustic trauma) during service. 3. Resolving reasonable doubt in the Veteran's favor, the evidence of record indicates that the Veteran's current bilateral hearing loss is related to service, and his tinnitus is related to hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting service connection for bilateral hearing loss and tinnitus, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection Laws and Regulations 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. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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 condition of sensorineural bilateral hearing loss (organic disease of the nervous system) is a chronic condition listed under 38 C.F.R. § 3.303(b); as such, 38 C.F.R. § 3.303(b) is applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In contrast, tinnitus is not a chronic condition under 38 C.F.R. § 3.303(b) and issue of service connection for tinnitus will be adjudicated using the general principles of service connection. Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. 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"). 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 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). 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, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's 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). 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 his 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). Analysis of Service Connection Claims The Veteran contends that his current bilateral hearing loss and tinnitus are associated with noise exposure during service while performing his duties as a machine gunner, truck driver, and radio operator in an artillery battalion. Specifically, during a March 2010 VA examination, the Veteran reported that he was exposed to 90 mm and 40 mm gunfire, machinegun fire, tanks, and 105 howitzers. In his October 2009 claim, the Veteran reported that he has been suffering from hearing loss and ringing in the ears ever since he returned from Korea. In his April 2010 notice of disagreement, the Veteran stated that he had been suffering from hearing loss and a chronic ringing in his ears since prior to discharge from service. A hearing loss disorder for VA compensation purposes is established when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; 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 (controlled speech discrimination) test are less than 94 percent. 38 C.F.R. § 3.385 (2012). See also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). The Veteran has been diagnosed with bilateral sensorineural hearing loss and has bilateral hearing loss (both audiometric test scores and speech recognition test scores) that meets the standards for VA disability compensation under 38 C.F.R. § 3.385. See March 2010 VA audiological examination. Further, based on the Veteran's assertions in his October 2009 claim and during the March 2010 VA examination, the Board finds that the Veteran has a current disability of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (stating that a lay person is capable of reporting symptoms of tinnitus). On the question of in-service injury, disease, or event, the Board finds that the Veteran was exposed to loud noise during service. The Veteran has credibly reported that his military occupational specialty was field artillery, truck driving, and as a radio operator. He reported that he was exposed to 90 mm and 40 mm gunfire, machinegun fire, tanks, and 105 howitzers. In the March 2010 rating decision, the RO noted that the Veteran's military occupational specialty was field artillery, truck driving, and as a radio operator while on duty. The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that exposure to hazardous noise for veterans with a duty MOS of field artillery as "highly probable." Accordingly, the Board finds that the Veteran was exposed to acoustic trauma during service. Regarding the issue of a nexus to service, the Board finds that the evidence is in relative equipoise as to whether bilateral hearing loss is related to service. In this regard, the evidence of record includes the January 1952 service entrance examination and the November 1953 service separation examination, which revealed whispered voice tests within normal limits. The Board notes, however, that audiometric testing was not conducted at that time. In a March 2010 VA examination report, the examiner diagnosed the Veteran with sensorineural bilateral hearing loss. The VA examiner was asked to render an opinion as to whether any hearing loss or tinnitus was due to the Veteran's service, or due to some other cause. The VA examiner stated that the hearing tests given at separation from service in 1953 were by qualitative methods (whispered voice tests), which were not reliable evidence of normal hearing and insensitive to high frequency hearing loss characteristic of acoustic trauma. The examiner reasoned that current hearing loss could be due to aging, noise exposure, and other factors not yet identified. Therefore, the March 2010 VA examiner opined that she could not resolve the issue without resort to mere speculation. That notwithstanding, the examiner stated that the Veteran's level of hearing loss appeared to be greater than what would be expected due to aging alone. It was noted that according to the 2002 American College of Occupational and Environmental Medicine Position Statement on Noise-Induced Hearing Loss, scientific researched indicated that hearing loss due to noise did not progress beyond age-related changes once the exposure to noise was discontinued. The VA examiner also noted that the first evidence of bilateral hearing loss was found in March 2005; however, in his April 2010 statement, the Veteran stated that he did not seek medical care until 2005 because he did not have health insurance and could not afford to seek treatment. Further, he stated that he had been suffering with hearing loss since before service separation. The Veteran also reported that since service separation he has worn hearing protection while exposed to noise from farm machinery and other heavy equipment. Upon review of all the evidence of record, the Board finds that the evidence is at least in equipoise as to whether bilateral hearing loss is related to in-service noise exposure. The Board finds that the Veteran has made a credible statement that hearing loss symptoms have been continuous since service. The VA examiner indicated that the current hearing loss could be due to noise exposure in service and the record indicates that there was noise exposure in service. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. As to the Veteran's tinnitus disability, the Veteran contends that he has suffered from ringing in the ears since service. The March 2010 VA examiner stated that an audiological report in 2005 showed the onset of "occasional fluttering sound in the ears." The examiner indicated that the Veteran reported the onset of tinnitus in the past 5 to 6 years. The examiner noted that the etiology of tinnitus was unknown and stated that subjective tinnitus was as likely as not a symptom associated with bilateral hearing loss. As noted above, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). See Allen, 7 Vet. App. at 448. The evidence shows that a current disability of tinnitus exists. The probative medical evidence of record demonstrates that tinnitus was proximately caused by the Veteran's hearing loss, which the Board has found to be service-connected. Therefore, resolving reasonable doubt in favor of the Veteran, service connection for tinnitus on a secondary basis is warranted. 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs