Citation Nr: 1325667 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-05 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from March 1962 to May 1964. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). On his VA Form 9, the Veteran requested a Board hearing. However, in December 2011, he contacted VA via telephone and stated he wished to cancel the hearing. Under 38 C.F.R. § 20.704(e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Thus, the Board will proceed with appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran experienced acoustic trauma in service; symptoms of bilateral hearing loss and tinnitus were chronic in service; symptoms of bilateral hearing loss and tinnitus have been continuous since service separation; and the Veteran's bilateral hearing loss and tinnitus disabilities are related to his active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 101, 1101, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 101, 1101, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). 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 organic diseases of the nervous system (e.g., sensorineural hearing loss and tinnitus), 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); 38 C.F.R. §§ 3.307, 3.309 (2012). 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). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 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 a 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). 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 his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his current bilateral hearing loss and tinnitus are related to acoustic trauma during active service. Specifically, he avers that he was exposed to the noise of aircraft engines in his job as an aircraft mechanic without any hearing protection. 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). At the outset, the Board notes that the Veteran does have a current hearing loss disability as defined by VA regulations. At an August 2009 VA examination, an audiogram revealed puretone thresholds of 15, 15, 55, 60, and 80 decibels in the right ear and 20, 45, 70, 85 and 80 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively. Thus, based on the August 2009 audiogram results, the Board finds that the Veteran has a current bilateral hearing loss "disability" under the criteria of 38 C.F.R. § 3.385. The Board also finds that the evidence demonstrates that the Veteran was exposed to acoustic trauma in service. His DD Form 214 shows that his Military Occupational Specialty was aircraft mechanic. Thus, the Board finds his contentions regarding military noise exposure to be credible. Next, after a review of all the evidence of record, lay and medical, the Board finds the Veteran's contentions regarding chronic hearing loss and tinnitus symptoms during service to be credible. His service separation examination report includes the results of an audiogram, which revealed puretone thresholds of 25, 5, 10, 25, and 20 decibels in the right ear and 15, 0, 5, 25, and 35 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively. (Note: Prior to November 1, 1967, service department audiometric test 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). In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards.) Thus, as testing showed puretone thresholds above 20 decibels in each ear, some degree of bilateral hearing loss was shown at separation. See Hensley, 5 Vet. App. at 157. Moreover, while the Veteran did not report tinnitus at the time of separation, he has stated in the context of the current claim that he did not report his tinnitus during service because, at the time, it was not considered to be a disability; the Board finds his contention to be credible. Moreover, the Board finds the Veteran's contentions as to continuous symptoms of hearing loss and tinnitus following service separation to be credible. The first documentation of hearing loss and tinnitus complaints is in September 2002, when a history of tinnitus was noted and the Veteran requested a hearing evaluation. Decreased hearing acuity was also noted on examination. However, despite the large gap between service separation and the first documented report of hearing loss and tinnitus, the Veteran has been consistent in his history of symptom inception. Specifically, at an August 2008 VA audiology consultation, the Veteran stated that he had experienced constant ringing in his ears for the past 35 to 40 years (placing inception of tinnitus as early as 1968), and had noticed a gradual hearing loss over the past 20 to 30 years (placing inception of hearing loss as early as 1978). He reported a similar history of the onset of his symptoms at the August 2009 VA examination. The Veteran is competent to testify as to the onset of his hearing loss and tinnitus, as they are observable by a layperson. See Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d at 1336. Moreover, he has not been inconsistent in his statements as to the onset of his hearing loss and tinnitus. Thus, there is no reason to doubt the Veteran's statements as to the chronic nature of his hearing loss and tinnitus since service separation. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the current hearing loss and tinnitus have been chronic since separation from active service. Moreover, the Board finds that the evidence is at least in equipoise as to whether the current hearing loss and tinnitus began during active service. The Veteran was afforded a VA examination in August 2009. The VA examiner reviewed the claims file and conducted an audiological examination and interview of the Veteran. The VA examiner opined that the Veteran's hearing loss and tinnitus are less likely as not related to military service, reasoning that the separation audiogram indicated essentially normal hearing bilaterally, and no complaints of tinnitus were found in the review of the service treatment records. As noted above, the Veteran explained in the context of the current claim that he had not reported tinnitus during active service because it was not considered a disability at the time. Thus, there would be no documentation of complaints of tinnitus. Moreover, the VA examiner did not address the presence of at least some degree of hearing loss at the time of separation (even though it did not meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385 at the time), nor did the examiner take the Veteran's credible statements regarding the onset of his symptoms into account in providing his opinion. Further, the Board notes that a VA audiologist conducted an audiological examination in August 2008 and provided a favorable nexus opinion. Specifically, the VA audiologist noted the Veteran's noise exposure both during and after service (exposure to the noise of car engines and tools as a paint and body mechanic) and his MOS of aircraft mechanic, as well as the Veteran's history of the onset of symptoms, and opined that it is as likely as not that a portion of the Veteran's hearing loss and subjective tinnitus could have been caused by the noise exposure suffered during active service. Thus, despite the VA examiner's negative nexus opinion, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's hearing loss and tinnitus had their onset during active service. As noted above, the Veteran is competent to state when his hearing loss and tinnitus began. See Jandreau; Buchanan. The Veteran has been consistent in the history he has provided, and there is no conflicting evidence regarding the history of onset of the hearing loss and tinnitus. In summary, based on the documentation of at least some degree of hearing loss during active service and on the Veteran's competent statements regarding chronic hearing loss and tinnitus during and after active service, with the resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for hearing loss and tinnitus are met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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). Given the full grant of benefits sought on appeal, no conceivable prejudice to the Veteran could result from this decision; therefore, no discussion of compliance with the VCAA is necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs