Citation Nr: 1326577 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-27 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota 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 had active service from June 1958 to May 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA), Regional Office (RO), in St. Paul, Minnesota. 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 noise exposure during military service. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran's favor, a bilateral hearing loss disability was incurred as a result of service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 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, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (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. The Veteran contends that his current hearing loss and tinnitus are due to his in-service noise exposure. In support, he states that he was not afforded hearing protection during service and that although he was exposed to acoustic trauma while serving in law enforcement following his discharge from active duty, he reports having been issued hearing protections in that post-service occupation. The Veteran also cites to lay statements of fellow law enforcement personnel with whom he worked who corroborate his account of being issued hearing protections while serving in law enforcement and that pursuant to policy guidelines that they used these protections in that capacity. 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). 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). 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."). 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 frequencies 500, 1000, 2000, 3000, or 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. The Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). To establish service connection for tinnitus, the Veteran is not obliged to show that his hearing loss or tinnitus was present during active military service. In support of his claim, the Veteran reports that the onset of both his hearing loss and tinnitus was due to the acoustic trauma he suffered in service. Specifically, the Veteran states he was exposed to noise from gunfire during target practice. Service treatment records, including the June 1958 entrance examination and the April 1961 separation examination, do not reflect complaints of tinnitus and hearing loss, or note any clinical deficiency in hearing. A March 1993 private audiological examination reflects hearing loss. The Veteran was afforded a VA examination in February 2009. His claims folder was reviewed by the VA examiner. The Veteran reported a history of unprotected military noise exposure due to target practice and firing 45 caliber guns and M-1 gun fire. He noted that he stood close to others firing their guns at practice. The Veteran reported that no hearing protection was worn and that his ears would ring for "awhile" after target practice. It was noted that the Veteran worked in law enforcement post service, but that he wore hearing protection when target shooting. He denied occupational noise. Clinical examination revealed normal to profound hearing loss in the right ear and mild to profound hearing loss in the left and a hearing loss disability pursuant to 38 C.F.R. § 3.385. Upon examination, the examiner opined that it was less likely as not that the current hearing loss was related to in-service noise exposure. In reaching this conclusion, the examiner indicated that that there was no frequency specific audio at enlistment, therefore a significant threshold shift in hearing could not be ruled out, though it was less likely as not that there had been a significant threshold shift in hearing given his bilateral hearing was well WNL (within normal limits) at the time of separation. The examiner indicated that the Veteran's tinnitus was as likely as not a symptom associated with the Veteran's hearing loss. The examiner noted, however, that there was no military documentation regarding tinnitus. The examiner noted that the claim for service connection was filed almost 50 years post military service and that the Veteran had after military noise exposure. In a June 2009 medical opinion, the examiner noted that again, the Veteran's current bilateral sensorineural hearing loss was not due to noise exposure during active service. The examiner did not form an opinion regarding the Veteran's post-service noise exposure. After reviewing the available evidence, the Board finds that service connection for hearing loss and tinnitus is warranted. A current hearing loss disability has been established based on the February 2009 VA examination report. See 38 C.F.R. § 3.385. Current tinnitus has been established based on the Veteran's competent and credible statements and also the February 2009 VA examination report. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As the Veteran has stated, he was exposed to in-service noise exposure due to target practice and M-1 gun fire. The only question remaining then is whether the evidence establishes a causal connection between the current disability and in-service noise exposure. The Veteran indicated on his December 2008 claim that the onset of his hearing loss and tinnitus disability began in 1961. The Veteran reported that he retired from law enforcement because his hearing loss made it difficult for him to understand the people he was interviewing if they were soft spoken or if there was background noise. In support of his claim, the Veteran submitted lay statements from fellow law enforcement colleagues who reported that while the Veteran worked in law enforcement, he wore hearing protection during target practice. A liberal reading of the Veteran's statements in support of his claim establishes a report of continued difficulty with his hearing acuity and tinnitus symptoms since service. The Board has considered the February 2009 VA examiner's opinion regarding the etiology of the hearing loss and tinnitus, but notes that the basis for the examiner's conclusion does not account for the Veteran's competent, credible and probative accounts of declined hearing loss and tinnitus, to include onset and recurrence since separation. See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, the Board finds that the VA opinion is not determinative on the question of causal nexus between the current hearing loss and tinnitus and service. Aside from the medical opinion, the only remaining evidence of a nexus is the Veteran's credible report of hearing loss in service with recurrent symptoms thereafter. Thus, the Board finds that the required nexus has been established for the current hearing loss disability. With respect to the claimed tinnitus, the Board finds that the negative VA opinion only serves to place the evidence regarding a nexus between current tinnitus and service in relative equipoise. Thus, reasonable doubt is resolved in favor of the Veteran. Accordingly, service connection for bilateral hearing loss and tinnitus is granted. 38 U.S.C.A. § 5107(b). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs