Citation Nr: 1332415 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-31 1921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a compensable rating for service-connected asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from June 1951 to June 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In February 2013, the Board remanded the case for further development. Since the requested development has not been completed, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In July 2013 and September 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained medical expert opinions from the Veterans Health Administration (VHA) regarding the issues of service connection for bilateral hearing loss and tinnitus. As the decision with regard to these issues is favorable, the Veteran and his representative need not be provided a copy of the opinion or afforded the opportunity to submit additional evidence and argument. The claim of a compensable rating for asbestosis is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Bilateral hearing loss had its onset during active service. 2. Tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board is granting the claims of service connection for bilateral hearing loss and tinnitus, VCAA compliance need not be addressed further regarding these issues. In July 2013 and September 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained medical expert opinions from the Veterans Health Administration regarding the issues of service connection for bilateral hearing loss and tinnitus. As the decision with regard to these issues is fully favorable, the Veteran and his representative need not be provided a copy of the opinion or afforded the opportunity to submit additional evidence and argument. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board is granting the claims, VCAA compliance need not be addressed further. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, also referred to as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Impaired hearing will be considered to be a disability for VA compensation purposes only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155 (1993). Service connection for sensorineural hearing loss may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence and Analysis The Veteran currently has bilateral hearing loss according to VA standards and tinnitus as shown on VA examinations in February 2009 and in April 2013, which satisfies one element of service connection, namely, a present disability. As for the second element of service connection, the Veteran reported inservice noise exposure to naval gunfire while aboard the USS Rochester, a heavy cruiser, armed with 8" guns. The record shows that the ship completed twenty-one gun strikes in direct support of United Nations Forces in Korea from November 1951 to April 1952. The record therefore establishes in-service incurrence of noise exposure. Therefore, two of the three elements needed to establish service connection have been established. This evidence is not disputed. The remaining element is a causal relationship between the present disabilities and the noise exposure in service, the so-called "nexus" requirement. A hearing loss disability under 38 C.F.R. § 3.385 is not a disability recognized as subject to lay observation by case law, while tinnitus is. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (ringing in the ears or tinnitus is capable of lay observation). The Board need not address further the Veteran's competency and credibility as to the nexus requirement, because the medical evidence of record is sufficient to decide the claims without the Veteran's lay testimony. On the question of causation, there is medical evidence for and against the claims of service connection. The evidence of record supporting service connection for a bilateral hearing loss disability and tinnitus consists of the opinions of a private physician and a VHA expert. In the private opinion, an audiologist noted that the Veteran's history included significant noise exposure while serving on the USS Rochester and expressed the opinion that it was more likely than not that the Veteran's exposure to loud noise while serving in the US Navy contributed to his hearing loss and tinnitus. The VHA opinion included a thorough review of the Veteran's noise exposure history and medical history. The VHA expert reviewed the accuracy of the whisper test and found that the Veteran passing the whisper test was not convincing evidence that there was no significant change in hearing while in service since the test cannot rule out high frequency hearing loss below 40 decibels. The VHA expert referred to several studies on peak sound pressure levels of guns and artillery weapons, including an 8 inch gun. The VHA expert stated that the Veteran's exposure to extreme noise in service, constant noise occupationally, and intermittent noise recreationally all contributed to his hearing loss as well as aging. Although it was not possible to determine the exact contribution of the noise trauma in service, it was more likely than not that the Veteran's hearing loss and tinnitus were at least in part caused by or related to extreme noise exposure as a sight setter on 8 inch gun in service. The evidence against the claim consists of the opinions of VA examiners and a VHA opinion. On VA examination in February 2009 and in April 2013, the VA examiners stated that hearing loss and tinnitus were less likely caused by military noise exposure and more likely caused by his post-service occupational noise exposure. The basis for the opinions was that the Veteran had a normal whisper test at separation and there was no evidence of hearing loss during service or for some time following service. In July 2013, a VHA specialist reached the same conclusion. The VA examiner stated that although the Veteran's occupational noise exposure was less intense then his military noise exposure, it was significantly more continuous and for many more years. The VA examiner concluded that the hazardous noise during civilian life was far greater than noise exposure during service and, therefore, the nexus with service was far less than 50 percent probability compared to civilian noise exposure. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). None of the opinions challenge the fact that the Veteran had noise exposure in service and that the Veteran currently has the claimed disabilities. The negative opinions are not found to be probative as the opinions are based on no evidence of hearing loss or tinnitus during service or for many years after service and relied heavily on the fact that the Veteran passed the whisper test at separation from service. In contrast, the VHA expert provided a persuasive explanation that the whisper test was not dispositive that the Veteran did not have a significant change in hearing while in service. The VHA expert also provided support as to why the Veteran's hearing loss and tinnitus were caused in part by his inservice noise exposure, including studies regarding the validity of the whisper test and peak sound pressure levels of heavy weapons. The Veteran's private audiologist considered the Veteran's history of inservice and post-service noise exposure and also found that inservice noise exposure contributed to the Veteran's hearing loss and tinnitus. In light of the evidence of record, the Board finds that the medical evidence in favor of the claims outweighs the evidence against the claims and service connection for a bilateral hearing loss disability and for tinnitus is warranted. ORDER Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is granted. REMAND In its remand, the Board directed that the Veteran be afforded a VA examination to determine the current severity of asbestosis, including a pulmonary function test that measured FVC and DLCO (SB). In April 2013, on VA examination, the pulmonary function test did not include DLCO or the maximum exercise capacity. As the findings are insufficient to decide the claim, a reexamination under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the current severity of asbestosis. The examination must include a pulmonary function test that measures FVC and DLCO (SB) and the maximum exercise capacity expressed as milliliters/kilograms/minutes of oxygen consumption and any cardiorespiratory limitation. The results for FVC and DLCO must be provided in terms of percent predicted. The VA examiner is asked to address the following: Were results between the FVC and DLCO in February 2009 and in October 2010 consistent? 2. On completion of the development, the claim should be adjudicated. If the benefit is denied, then furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs