Citation Nr: 1326409 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 09-26 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1957 to May 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that denied service connection for bilateral hearing loss and tinnitus. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, a current bilateral hearing loss disability is related to in-service acoustic trauma. 2. Resolving all reasonable doubt in the Veteran's favor, a current tinnitus disability is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The evidence is at least in relative equipoise on the question of whether the Veteran's current bilateral hearing loss is related to acoustic trauma in active service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. Resolving doubt in the Veteran's favor, tinnitus was incurred as a result of service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The grant of service connection for hearing loss and tinnitus constitutes a full grant of the benefits sought. As such, no discussion of VA's duty to notify or assist is necessary. Analysis The Veteran seeks service connection for bilateral hearing loss and tinnitus. In support, he maintains that he developed each disability as a consequence of in-service acoustic trauma. He also asserts that his tinnitus is related to his bilateral hearing loss. 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). For 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 above frequencies 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. See also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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 1372, 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 United States Court of Appeals for Veterans Claims (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 asserts service connection for bilateral hearing loss and tinnitus on the basis that he developed the conditions due to in-service acoustic trauma. In support of his claim, the Veteran reports that the onset of both his hearing loss and tinnitus was due to his exposure to loud noises from airplane engines while working as a flight mechanic aboard ships in service. The service treatment records do not show treatment for or complaints of hearing loss or tinnitus. In May 2008, the Veteran was afforded a VA audiological evaluation. The examiner noted that the Veteran served as a jet mechanic, working on the flight deck while on active duty. The examiner also noted that post-service, the Veteran worked as a carpenter and was exposed to noise from hammering and power tools. The Veteran denied noise related to recreational activity. The Veteran stated that he suffered from tinnitus and had trouble hearing, with his left ear being worse. Clinical examination revealed pure tone thresholds in the Veteran's right ear of 20, 35, 40, 60, and 65 decibels, at 500, 1000, 2000, 3000 and 4000 Hz respectively. In his left ear, pure tone thresholds were 25, 35, 35, 60, and 60 decibels at the same frequencies. Speech recognition was 88 percent in the right ear and 76 percent in the left ear. The examiner diagnosed the Veteran with normal to moderately severe sensorineural hearing loss in both ears. The examiner opined that while it was possible that the Veteran's hearing loss and tinnitus may have had its onset in service, he could not provide an opinion regarding the relationship between tinnitus, hearing loss and the Veteran's military noise exposure without resorting to mere speculation. The examiner further stated that the Veteran was exposed to a great deal of noise in service, but also worked in an extremely load occupation after his separation from active duty. The Veteran had a private audiology assessment in July 2009. The physician, Dr. Angela Esterline, diagnosed the Veteran with bilateral mild low frequency sloping to moderately severe in the high sensorineural hearing range. The Veteran testified at a hearing before a Decision Review Officer in October 2009. The Veteran stated that he was a flight line mechanic and worked on flight decks. He noted that he was exposed to "a very powerful amount of noise" from jet engines. He stated that was provided ear protection, but that the "foam rubber" which protected his ears would often not be in the equipment. He also noted that the ringing in his ears had been going on for a long time. In a statement dated in November 2009 from Dr. Esterline, she opined that it was at least as likely as not that the Veteran's current hearing loss was a direct result of his work in service. The physician stated that after a review of the Veteran's service treatment records, that high frequency hearing loss was noted at discharge. Further, she stated tinnitus is very often a side effect of noise induced hearing loss. The Veteran was afforded a VA examination in December 2009. Here, the clinical evaluation revealed pure tone thresholds in the Veteran's right ear of 20, 40, 45, 55, and 65 decibels, at 500, 1000, 2000, 3000 and 4000 Hz respectively. In his left ear, pure tone thresholds were 20, 30, 35, 55, and 60 decibels at the same frequencies. Speech recognition was 80 percent in the right ear and 72 percent in the left ear. The examiner stated that he could not provide an opinion without resorting to mere speculation. He noted that the claims file was not available for review. In a December 2010 medical opinion, the examiner stated that he had reviewed the Veteran's claims file. He noted the November 2009 private physician's statement regarding the relationship between the Veteran's current hearing loss and tinnitus and active duty service. The examiner stated that due to voice stimuli being a poor indicator of the presence or absence of high frequency hearing loss, there was no way to ascertain if the Veteran developed high frequency hearing loss in service or prior to his entrance in to active duty. The examiner also stated that the Veteran's hearing results between 500 and 4000Hz remained within the normal range while in service. The examiner opined that the Veteran's current hearing loss was not the result of in-service noise exposure. He also stated that the Veteran's current tinnitus disability, which was related to his current hearing loss, was also not the result of in-service acoustic trauma. After reviewing the entire claims file, the Board finds the evidence to be in relative equipoise. A current hearing loss disability has been established based on the May 2008 VA examination report. Current tinnitus has been established based on the Veteran's competent and credible statements and also the May 2008 VA examination report. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has alleged that during service, he worked on flight decks, and was routinely exposed to loud noises from aircraft engines. Finally, when the question of the etiology of the Veteran's current bilateral hearing loss and tinnitus was presented to a VA audiologist in 2008, the audiologist stated that while it was possible that the Veteran's hearing loss and tinnitus may have had its onset in service, he could not provide an opinion without resorting to speculation. The Board observes that although the examiner's opinion does not suggest that the Veteran's confirmed acoustic trauma during military service resulted in a current diagnosis of hearing loss and tinnitus, it also does not rule out such a possibility either. The same audiologist reviewed the Veteran's claims file, and in a December 2010 medical opinion noted that the Veteran's hearing loss was not casually related to service. However, a nexus was in fact indicated by the Veteran's private physician, Dr. Esterline in November 2009. Thus, after finding the evidence to be in relative balance, the Board has determined that awards of service connection for bilateral hearing loss and tinnitus are warranted in light of 38 U.S.C.A. § 5107. ORDER Service connection for bilateral hearing loss is granted. Service connection for bilateral tinnitus is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs