Citation Nr: 1326756	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  10-30 515	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for right ear hearing loss.  



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

J. Connolly, Counsel




INTRODUCTION

The Veteran served on active duty in the United States Army from September 1956 to September 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In December 2012, the Board remanded, in pertinent part, the issue on appeal.  In a March 2013 rating decision, service connection was granted for degenerative arthritis of the right knee, tinnitus, and left ear hearing loss (claimed as otitis media).  As such, although these issues had been on appeal as identified in the Board's December 2012 remand, only the issue of service connection for right ear hearing loss remains on appeal.  See also April 2012 Appellant's Post-Remand Brief.  In May 2013, the Board remanded this issue which is now ready for appellate review.

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).


FINDING OF FACT

Right ear hearing loss is attributable to service.


CONCLUSION OF LAW

Right ear hearing loss was incurred in active service.  38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  The Veteran's claim is being granted.  As such, any deficiencies with regard to VCAA are harmless and nonprejudicial.

Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  

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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

In addition, sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

The Board notes that 38 C.F.R. § 3.303(b) provides that with chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of cases, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date.  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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic."  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim.  

Thus, continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303(b) (2012).  The theory of continuity of symptomatology can be used only in cases involving those disabilities explicitly recognized as chronic.  38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an organic disease of the nervous system.  38 C.F.R. § 3.309(a) (2012).  Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology.  In this case, the Veteran has been diagnosed as having sensorineural hearing loss in the right ear.  See, e.g., August 2012 VA examination.

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 the Department of Veterans Affairs 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).

Hearing loss disability is defined by regulation.  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, 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.

Since November 1, 1967, audiometric results have been reported in standards set forth by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  Service department audiometric charts dated after November 1, 1967 are presumed to be in ISO-ANSI units unless otherwise specified, while such charts in VA medical records dated after June 30, 1966, are similarly presumed to be in ISO-ANSI units.  
 
A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, 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."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2).  When, for example, 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 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, 310 (2007).

Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  The Veteran is competent to report the Veteran can observe and feel through the senses.  See Layno.  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).

Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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).  To this end, 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 U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the 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 ("the Court") similarly 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 when he/she has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

As already explained, competent lay evidence may establish the presence of observable symptomatology and, in certain circumstances, it may provide a basis for establishing service connection.  See Barr.  Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions beyond simple observations.  Jandreau; see Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).  Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative.  Buchanan; see also Rucker and Layno.  The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases.  Buchanan at 1337.  The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence.  Id.  

As noted, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  In this case, the Veteran is competent to report noise exposure, which has in fact been conceded by VA, as well as having problems hearing.  However, the Veteran has a history of both inservice and post-service noise exposure.  As such, the facts of his case are complicated in nature and a medical opinion is required, as noted below.

The STRs reflect that the Veteran was afforded a whispered voice testing on induction which yielded results of 15/15.  The Veteran was treated for multiple left ear infections during service, but there was no report of right ear hearing loss.  On separation examination in August 1958, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
10
10
10







The August 1958 separation examination report included a PULHES profile that demonstrated that the Veteran's "hearing and ears" were assigned a "2."  The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service).  The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."  Odiorne v. Principi, 3 Vet. App. 456, 457 (1992).  The VA examiner's characterization of the Veteran's hearing in service may not be accurate as it is not clear that the examiner performed the conversion from ASA to ISO units.  The converted values are as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
35
25
20
20
15







Post-service, in October 1958, the Veteran made a claim of service connection, but only made mention of the left ear and his knee.  In conjunction with that claim, the Veteran was afforded a VA audiological evaluation.  The values, as converted, for puretone thresholds were the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
n/a
15







In November 2008, the Veteran's claim of entitlement to service connection for right ear hearing loss was received.  Thereafter, the Veteran was treated by VA for hearing loss complaints.  For example, in March 2009, he underwent a hearing aid evaluation.  The Veteran related that during his military service, he was a clerk typist.  He had acoustic trauma and was a right-handed shooter.  Post-service, he indicated that he had spent time on his firing range and also had some recreational noise exposure.  The current audiological testing was consistent with normal low to mid frequency hearing sloping to mild to moderate high frequency sensorineural hearing loss with excellent word recognition ability in the right ear.  The word recognition was 100 percent.  In June 2009, it was noted that the Veteran was new to audiology at VA and that he had mild to severe, mid-high frequency sensorineural hearing loss of the right ear.  His speech recognition score was 92 percent.  The same was noted the next month.

In August 2012, the Veteran was afforded a VA examination.  On audiological testing, puretone thresholds were the following:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
35
50
55







The speech discrimination score yielded a result of 92 percent.  The examiner opined that current right ear hearing loss was not at least as likely as not caused by or a result of an event in military service.  The examiner's rationale for this conclusion was that the separation audiological testing revealed normal findings in all frequencies.  The examiner indicated that the left ear hearing loss was service-related based on multiple inservice findings which were discussed.  The examiner also noted that the Veteran had military noise exposure from weaponry as well as post-service industrial noise exposure as a machinist and recreational noise exposure.  

This case was last remanded because, as pointed out by the Veteran's representative, the examiner did not consider the accurate Hertz frequencies values on the separation examination since the examiner did not convert the examination findings.  The examiner referred to the separation examination in her conclusion, stating that this examination "revealed normal audiometric thresholds at all frequencies in the right ear, therefore it is less likely than not that his current right sided hearing loss is due to his military service".  However, the rationale rendered by the VA examiner in August 2012 is inadequate, as the examiner did not explain what the finding that the Veteran did not have right ear hearing loss at separation from service has to do with whether his current right ear hearing loss disability is related to service.  See, e.g., Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (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.)

In light of the foregoing, the Board determined that an addendum should be obtained from the examiner who conducted the August 2012 examination, or by another VA examiner if she was unavailable, to provide an opinion regarding the etiology of the Veteran's hearing loss, based on an accurate history.  

Thereafter, the Veteran reported that he had not received any further private treatment and had last been examined by VA for his ears in August 2012.  

In June 2013, an addendum was obtained, but it was incomplete and did not respond to the Board's inquiries.  However, it was followed by another addendum which provided the requested information.  The examiner converted the audiometric findings, but ultimately concluded that the Veteran's right ear hearing loss was not related to service.  She noted that the Veteran's separation audiogram showed a hearing loss, in her opinion, only at 500 Hertz which was not typically seen in noise-inducted hearing loss.  As far as his current hearing loss in the right ear was concerned, she indicated that he Veteran had sufficient noise exposure post-service to have caused this hearing loss.  The examiner then cited to medical findings regarding delayed-onset hearing loss to support her conclusion.  

Thereafter, an opinion was received from the Veteran's primary care physician, dated in April 2013, in which the physician indicated that the STRs and treatment records were reviewed and it was this physician's opinion that it was as likely as not that the inservice noise exposure caused and/or contributed to right ear hearing loss.  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez.  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; 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.").  

In this case, both recent medical opinions are probative per the general guidelines of Nieves-Rodriguez.  In particular, it is significant that the examiners reviewed an accurate history prior to providing opinions.  Both examiners had a basis for their opinions.  The VA addendum report cited to hearing loss at one frequency on separation as well as medical findings regarding delayed-onset hearing loss to support her conclusion.  The Board notes that with regard to the positive opinion, while the Veteran's right ear hearing did not reflect hearing loss within VA's definition during service, he had hearing loss at 500 Hertz when he separated and there is also evidence of inservice noise exposure from weapon fire.  Thus, there exists a reasonable basis for the positive finding.  In addition, there is competent and credible supporting lay evidence.  

The Board finds that the medical evidence of record is in relative equipoise as to the matter of whether right ear hearing loss is attributable to service.  As noted, there are contradictory opinions, but the Board finds that they are of equally probative value as they were provided by medical professionals and were based on the medical history.  The evidence in this case is so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulations.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, service connection for right ear hearing loss is warranted.


ORDER

Service connection for right ear hearing loss is granted.  



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs