Citation Nr: 1333437 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-20 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to an initial compensable rating for sinusitis, status post submucous resection residuals. 3. Entitlement to total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran had active military service from August 1960 until his retirement in September 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In light of the Court's decision in Rice v. Shinseki, and given that the Veteran's claim for a higher rating for his service-connected sinus disability has been pending since October 2008, the Board has included the issue of entitlement to TDIU for adjudication, as reflected on the title page of this decision. Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDING OF FACT The Veteran has left ear hearing loss for VA compensation purposes that had its onset in service. CONCLUSION OF LAW Left ear hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants the claim for service connection for left ear hearing loss, representing a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. Service connection The Veteran seeks service connection for left ear hearing loss, which he attributes to his exposure to aircraft noise during service. He points out that service-connected right ear hearing loss disability is based on this same in-service noise exposure. 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 severity of his recurrent 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 at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 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."). Hearing loss for the purpose of VA disability compensation is considered 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. 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). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). 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); 38 C.F.R. § 3.102. Facts & Analysis The Veteran serviced military aircraft on land, and at sea aboard combat vessels, during service; so his exposure to excessive loud noise during service is conceded. The Veteran's 1990 separation examination indicates that his left ear hearing acuity from 500 to 4000 Hertz was within normal limits as defined by VA, and there is no record of left ear hearing loss within the year after service, so the criteria for a grant of service connection under 38 C.F.R. § 3.303(a), or under the presumptive provisions of 38 C.F.R. § 3.309(a), are not met. However, the Board finds that the post-service evidence supports a grant of service connection. In August 2008, the Veteran was accorded a VA audiology examination. Diagnosis was bilateral sensorineural hearing loss. The examiner concluded that the Veteran's right ear hearing loss and tinnitus were related to noise exposure during service (for which the Veteran has been duly service-connected), but that the Veteran's left ear hearing loss was not likely related to service because it was normal on separation from service. The Board is not persuaded, particularly as in-service audiograms do in fact show a significant negative shift in left ear thresholds from the time of the Veteran's entry into active duty service in 1960 until his retirement in 1990. See, e.g., Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993) (providing that service connection for hearing loss can be established if medical evidence shows that it is actually due to incidents during service, particularly where the evidence demonstrates a threshold shift during service). Moreover, according to a private Ear, Nose, and Throat physician, the Veteran's bilateral hearing loss is "due to noise exposure to aircraft noise in his 30 years of service in the military." See January 2009 report from private Ear, Nose, and Throat specialist. The Board finds this opinion, which was provided, after consultation with and examination of the Veteran by an expert in the field of Ear, Nose, and Throat disease, to be persuasive. See Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 845 (Fed. Cir. 1999) (unpublished decision), cert. denied 120 S.Ct.1251 (2000) (it is not error for the Board to value one medical opinion over another, so long as a rational basis for doing so is given). Accordingly, and for the reasons just expounded, the Board finds that the evidence is in favor of the Veteran's claim of service connection, and it is established. ORDER Service connection for left ear hearing loss is granted. REMAND As regards the claim for a compensable rating for the Veteran's service-connected sinus disability, medical records associated with the claims file since the Veteran's last VA sinus examination in August 2008 indicates that the Veteran's service-connected sinus disability has worsened. See, e.g., private medical records dating from December 2008 to January 2009. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected sinus disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim for a new examination. On remand, the RO must adjudicate the Veteran's entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice on the issue of entitlement to TDIU. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his sinus symptoms and their impact on his social functioning and ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a new VA examination with regard to ascertain the severity of his service-connected sinus disability. The examiner must review the claims file in conjunction with this examination, and must interview the Veteran during the examination. All indicated tests should be done, and all findings reported in detail. The examiner must also assess the level of impairment of the Veteran's service-connected sinus disability on his social and occupational functioning. A complete rationale for all opinions must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 4. Then re-adjudicate the appeal for an initial compensable rating for sinus disability; and adjudicate the intertwined issue of entitlement to a TDIU. If any benefit sought is not granted in full, issue the Veteran a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs