Citation Nr: 1324297 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-41 952 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial rating higher than 10 percent for residuals of a right inguinal hernia repair. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from January 1965 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 RO rating decision that, in pertinent part, granted service connection and a 10 percent rating for residuals of a right inguinal hernia repair. By this decision, the RO also, in pertinent part, denied service connection for bilateral hearing loss. In May 2011, the Veteran testified at a Travel Board hearing at the RO. In a September 2010 statement, the Veteran's representative raised issues of entitlement to service connection for a skin disorder, a back disability, bilateral knee disabilities, and for bilateral shoulder disabilities. At the May 2011 Board hearing, the Veteran again raised the issue of entitlement to service connection for bilateral shoulder disabilities. Those issues are not before the Board at this time and are referred to the RO for appropriate action. The issue of entitlement to an initial rating higher than 10 percent for residuals of a right inguinal hernia repair is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's current bilateral hearing loss is the result of exposure to acoustic trauma during active service. CONCLUSION OF LAW Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for bilateral hearing loss. As this represents a complete grant of this benefit, no discussion of VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for a "chronic disease," such as sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Impaired hearing will be considered to be a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. One requirement for service connection is the current existence of the claimed disability. With regard to hearing loss, 38 C.F.R. § 3.385 defines what constitutes the current existence of a hearing loss disability. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. At 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran contends that he has bilateral hearing loss that is related to service. He specifically maintains that he was exposed to noise from artillery fire, tanks, grenades, firefights, and helicopters during service. He reports that a grenade went off near him during service, and that there was another incident when a tank shot off ten rounds over his foxhole in January 1967. He denies that he had any civilian or recreational noise exposure. He specifically indicates that he only worked in office positions following his period of service and that he never had any occupational noise exposure. The Veteran essentially reports that he had hearing problems, such as tinnitus during service, and that he has suffered from hearing loss since at least 1975 or 1976, when he was diagnosed with sensorineural hearing loss, that has steadily worsened. The Veteran had active service from January 1965 to January 1968. His DD Form 214 reflects that he had eleven months of foreign and/or sea service. His occupational specialty was listed as a cook. The Veteran's service personnel records indicate that he served in Vietnam from July 1966 to June 1967. Such records show that during his service in Vietnam, the Veteran served as a rifleman and as a messenger. The Veteran's service treatment records do not specifically show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385 (pursuant to the enlistment and separation examinations). There is no evidence of record of hearing loss within the year after service as required for a presumption of service connection. An October 2000 VA treatment entry notes that the Veteran had a past medical history of sinus problems and that he reported that he felt like he was in an echo chamber for the last six months. He stated that he took occasional decongestants. It was noted that the Veteran wanted a follow-up on an ear problem as well. The assessment was health maintenance, smokes. There was no specific reference to any hearing problems. The first post-service evidence of record of any possible bilateral hearing loss is in February 2007. A February 2007 VA mental health consultation report indicates, as to medical status and problems, that the Veteran reported that he had problems with his hearing. A May 2009 VA treatment entry relates an assessment that includes hearing loss. A July 2009 VA audiological examination report notes that the Veteran's claims folder was reviewed. The Veteran indicated that his chief complaints were bilateral hearing loss and bilateral tinnitus. It was noted that the Veteran served in the military from 1965 to 1968. The Veteran reported that he had noise exposure during his military service from tanks, grenades, firefights, and helicopters. He stated that there was an incident where a grenade went off near his location. The Veteran indicated that another incident occurred when a tank shot off ten rounds over his foxhole in January 1967. He denied that he had any civilian occupational or recreational noise exposure. The Veteran reported that he had bilateral tinnitus that was constant. He stated that his tinnitus began in January 1967 following an incident when a tank fired ten rounds over his foxhole. The examiner reported hearing results that were indicative of a hearing loss disability in both ears under 38 C.F.R. § 3.385. As to diagnoses, the examiner stated that the Veteran had sensorineural hearing loss in the right ear that was normal to mild, and that he had sensorineural hearing loss in the left ear that was normal to moderate. The examiner also indicated that the Veteran had tinnitus that was as likely as not a symptom associated with his hearing loss. The examiner commented that it was not likely that the Veteran's hearing loss was a result of noise exposure while in military service. The examiner stated that the Veteran's service treatment records indicate that he had normal hearing in both ears at the time of his discharge from the military. The examiner indicated that it was at least as likely as not that the Veteran's tinnitus was a result of noise exposure while in military service. The examiner reported that tinnitus was a subjective complaint that could not be objectively verified. The examiner indicated that the Veteran reported that his tinnitus began after a tank fired ten rounds over his foxhole. The examiner maintained that such an event could cause damage in the auditory system that was sufficient to result in tinnitus. At the May 2011 Board hearing, the Veteran testified that he was exposed to noise from artillery fire, grenades, tanks, and helicopters during service. He also stated that he was exposed to noise from C-130s, as well as from the C-23s that he rode in during jump school. He further indicated that he had ringing in the ears that started during service. The Veteran reported that after his period of service, he worked in office positions and that he never had any occupational noise exposure. The Veteran indicated that he noticed that he had hearing loss in 1975 or 1976, when he had an interview with Pillsbury. He stated that he underwent a hearing test at that time and that he was diagnosed with sensorineural hearing loss. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: 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. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board observes that the July 2009 VA audiological examination report notes that the Veteran's claims file was reviewed. The diagnoses included sensorineural hearing loss in the right ear that was normal to mild, and sensorineural hearing loss in the left ear that was normal to moderate. The examiner commented that it was not likely that the Veteran's hearing loss was a result of noise exposure while in military service. The examiner reported that the Veteran's service treatment records indicate that he had normal hearing in both ears at the time of his discharge from the military. The Board notes, however, that in regard to a claim of entitlement to service connection for hearing loss, the absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, when a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Further, the Board observes that in providing her opinion as to the etiology of the Veteran's bilateral hearing loss, the examiner failed to specifically address the Veteran's reports of noise exposure from tanks, grenades, firefights, and helicopters during service. Additionally, although the examiner accepted the Veteran's report that his tinnitus began during service, she did not specifically address the Veteran's reports of hearing problems, to specifically include tinnitus, in service and that he had hearing loss after service. The Board notes that the Veteran is competent to report that he had hearing problems in service and hearing problems since service, which he has essentially alleged in this matter. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The VA examiner also indicated that the Veteran's tinnitus, which she found to be related to service, was as likely as not a symptom associated with his hearing loss, which she concluded was not related to service. Therefore, the examiner's opinion, at least in that regard, appears to be contradictory. Thus, the Board finds that the opinion provided by the examiner at the July 2009 VA audiological examination, as to the etiology of the Veteran's bilateral hearing loss, has little probative value. The Veteran is currently diagnosed with bilateral hearing loss. Additionally, as noted above, the Veteran is competent to report in-service hearing problems, such as continuous hearing loss symptomatology since service, and current symptoms that form the basis for diagnosis of disability. See Davidson, supra. Moreover, the Board finds that the Veteran's account is credible. See also Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding 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, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Veteran reported that he was diagnosed with hearing loss in close proximity to service and that he was not exposed to excessive noise post service. After considering all the evidence and resolving any doubt in the Veteran's favor, the Board finds that the Veteran has bilateral hearing loss that had its onset during active service. Given the equally positive and negative evidence of record, the benefit-of-the-doubt doctrine (38 U.S.C.A. § 5107(b)) is applicable; thus, service connection is warranted. The appeal in this regard is granted. ORDER Service connection for bilateral hearing loss is granted. CONTINUED ON THE NEXT PAGE REMAND The remaining issue on appeal is entitlement to an initial rating higher than 10 percent for residuals of a right inguinal hernia repair. The Veteran was last afforded a VA gastrointestinal examination in July 2009. Since that time, at a May 2011 Board hearing, the Veteran testified that he was having pain, including severe pain at times, in the area of his service-connected right inguinal hernia repair. He also stated that he was taking pain medication every day. The Veteran further indicated that he was having regurgitation. The Board notes that the Veteran has not been afforded a VA examination, as to his service-connected residuals of a right inguinal hernia repair, in over four years. Additionally, the record clearly raises a question as to the current severity of his service-connected residuals of a right inguinal repair. As such, the Board has no discretion and must remand this matter to afford the Veteran an opportunity to undergo a contemporaneous VA examination to assess the current nature, extent and severity of his residuals of a right inguinal hernia repair. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for residuals of a right inguinal hernia repair since September 2010. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, VA treatment records (to include from the New Albany, Indiana VA Outpatient Clinic and the Louisville, Kentucky VA Medical Center), since September 2010 should be obtained. 2. Schedule the Veteran for a VA examination to determine the severity of his service-connected residuals of a right inguinal hernia repair. The claims folder should be provided to and reviewed by the examiner in conjunction with the examination. All signs and symptoms necessary for rating the Veteran's service-connected residuals of a right inguinal hernia repair should be reported in detail, (including all information necessary for rating such disability under Diagnostic Codes 7301 and 7338). 3. Then readjudicate the appeal. If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs