Citation Nr: 1322020 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 11-28 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, J. L., & J. M. ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The appellant served on active duty for training from July 1957 to January 1958. 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). These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2013, the appellant testified during a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. The Board notes that following the April 2013 hearing, the appellant submitted additional medical evidence to the undersigned, accompanied by a written waiver of his right to have the evidence reviewed in the first instance by the RO. The Board also notes that while the appellant began pursuing service connection claims for Parkinson's disease and a spinal cord injury, in his October 2011 VA Form 9 submitted in response to the September 2011 statement of the case, the appellant limited the scope of his appeal to the above-captioned issues. Accordingly, the issues involving Parkinson's disease and a spinal cord injury are not currently on appeal and will not be addressed below. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. FINDINGS OF FACT 1. Although no specific incident of acoustic trauma is reflected in the veteran's service treatment records, his assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 2. The appellant currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and the weight of the competent, probative evidence supports a finding that the appellant's current hearing loss is as likely as not related to acoustic trauma sustained during active duty for training. 3. The appellant currently has tinnitus, and the weight of the competent, probative evidence supports a finding that the appellant's current tinnitus is as likely as not related to acoustic trauma sustained during active duty for training. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 100(22), 101(24), 106, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 100(22), 101(24), 106, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In the decision below, the Board has granted the appellant's claims for service connection for bilateral hearing loss and bilateral tinnitus. As such, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Analysis 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 may be granted for a disability resulting from a disease or injury that was incurred in or aggravated while performing active duty for training, or from an injury incurred in or aggravated while performing inactive duty for training. 38 U.S.C.A. §§ 101(22), 101 (24), 106, 1131; 38 C.F.R. § 3.303(a), 3.6(c)(1). 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. In adjudicating a claim for VA benefits, VA is responsible for determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in favor of the appellant, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. The appellant has a current diagnosis of bilateral hearing loss for VA purposes, documented on VA examination in March 2011. A diagnosis of tinnitus is documented in a private medical report of April 2013. The appellant asserts that he has bilateral hearing loss and tinnitus due to noise exposure during his active duty service. He alleges he was exposed to excessive noise from several sources. At the April 2013 hearing, he testified that during basic training he threw hand grenades, which created loud noise, and also fired machine guns. Hearing Transcript, pp. 5-6. While he was given some sort of hearing protection for the machine guns, the noise was still uncomfortably loud. Id. at 6. He also testified that he drove a large tow truck and junk vehicles. Id. at 4-5. The muffler on the tow truck was ineffective and the exhaust pipe sat only 4 to 5 feet from the appellant. Id. He also moved old M-47 tanks, which were extremely noisy and had no mufflers. Id. at 10. The file indicates that some of the appellant's service treatment records were destroyed in the 1973 fire at the National Personnel Records Center. Given the absence of such records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The records that do exist, however, reflect no specific instance(s) of acoustic trauma. The Board notes that the absence of in-service evidence of hearing loss disability is not necessarily fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Likewise, service connection for tinnitus may be granted upon a showing that the disability is medically-related to service or to service-connected disability. Initially, the Board notes that the appellant is competent to describe in-service hearing difficulty and ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Washington v. Nicholson, 19 Vet. App. 362 (2005). Moreover, his DD214 Form indicates that he served an armament maintenance helper. The United States Department of Defense (DOD) has established lists of military occupational specialties (MOS) and the corresponding probability of hazardous noise exposure for each branch of the Armed Services. Here, the MOSs of armament repairer and armor crewman have been identified as an MOS with "highly probable" hazardous noise exposure. This is the highest likelihood of noise exposure contemplated by the DOD list. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, Sept. 2, 2010). Moreover, the RO has already conceded the presence of in-service acoustic trauma. See April 2011 Rating Decision and September 2011 statement of the case. Given all of this, the Board accepts that the appellant experienced in-service noise exposure, as alleged. Turning to the question of whether the appellant's current hearing loss and/or tinnitus are etiologically related to his in-service noise exposure, the record reflects two opinions on this question. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). On VA examination in March 2011, the examiner documented the appellant's history of exposure to tank noise, hand grenades, and weapons during basic training. The examiner noted that post service, the appellant was a bus driver and owned a taxi company. The examiner diagnosed the appellant with moderate to severe sensorineural hearing loss of the right ear, and mild to severe sensorineural hearing loss of the left ear. The examiner noted that the appellant's service treatment records did not contain any pure tone hearing tests. She opined that she could not resolve the issue of whether the appellant's bilateral hearing loss and tinnitus were related to service without resort to speculation. She did not indicate why this was so. In April 2013, the appellant submitted a private medical report, authored by S. Z., M.D., a board-certified otolaryngologist. Dr. Z. reviewed the appellant's medical records and conducted an examination of the appellant. He opined, I consider it as likely as not that his hearing loss and tinnitus [are] due largely, if not entirely, to his noise exposure while on active duty [sic] in the Army from July of 1957 to January of 1958, when he was exposed to unmuffled diesel engines, [a]utomatic weapons fire and explosions while serving as a truck driver and small arms repairman. This noise trauma would have been more than sufficient to cause the conditions present today. Dr. Z. indicated that he formed his opinion based on the appellant's physical examination, and his training as an otolaryngology boarded physician. Dr. Z. indicated that his findings were in keeping with literature of the American Tinnitus Association and the National Institutes of Health. The Board finds that this opinion outweighs that of the March 2011 VA examiner. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the United States Court of Appeals for Veterans Claims (Court) held that when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. In this case, the examiner made no attempt to explain her reasons for her inability to offer the medical opinion sought. This renders the opinion, which comprises the only statement concerning etiology besides the April 2013 private medical report, inadequate. By contrast, the Board finds that the April 2013 opinion of Dr. Z. is sufficient for the purposes of adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The report reflects that Dr. Z. is board-certified in his profession. His opinion was founded upon a review of the appellant's medical records, a physical examination, and relevant medical literature. While further explanation from Dr. Z. for his opinion may have been helpful, and a remand for a further medical opinion could be accomplished, the Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an veteran's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Given the facts noted above, and with resolution of any doubt in the appellant's favor, the Board concludes that the criteria for service connection for bilateral hearing loss and for tinnitus are met. ORDER Service connection for bilateral hearing loss is granted. Service connection for bilateral tinnitus is granted. ____________________________________________ STEPHANIE L. CAUCUTT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs