Citation Nr: 1335084 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 13-10 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The evidence is in relative equipoise concerning whether the Veteran's bilateral hearing loss is the result of his in-service noise exposure. 2. The evidence is in relative equipoise concerning whether the Veteran's tinnitus is the result of his in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385, 4.85 (2013). 2. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for bilateral hearing loss and tinnitus. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran seeks service connection for bilateral hearing loss and tinnitus, claiming that both conditions are a result of exposure to aircraft engine related acoustic trauma while in service. 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). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 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 degree 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."). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Board finds that the evidence supports an award of service connection for bilateral hearing loss and tinnitus. The evidence of record confirms that the Veteran has been diagnosed with hearing loss for VA purposes satisfying the first element required for service connection. At October 2010 and October 2012 VA examinations the Veteran also reported constant ringing in his ears. The Board finds the Veteran's self-diagnosis of tinnitus to be competent based on his ability to observe the phenomenon with his own senses. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a layperson is competent to observe tinnitus). Although audiometric testing conducted during the Veteran's service and at separation shows hearing within normal ranges for VA purposes, service treatment records indicate that the Veteran had complained of difficulty hearing and there is evidence in the record to suggest deterioration in the Veteran's hearing acuity while in service. The Veteran's military occupational specialty was as a Jet Aircraft Mechanic, which likely exposed him to acoustic trauma from jet engine noise. 38 U.S.C.A. § 1154(a). The Veteran reports having worn hearing protection only 60 percent of the time while on duty, further increasing the likelihood of harm from engine noise exposure. The Board finds the evidence concerning the nexus between the Veteran's in-service noise exposure and his current bilateral hearing loss to be in relative equipoise. VA examination opinions provided in October 2010 and October 2012 cannot be considered probative as both examiners stated in the rationales for their opinions that there were no complaints of hearing loss or tinnitus in the Veteran's service treatment records. In fact, an August 1964 treatment record notes the Veteran's complaint of having difficulty hearing, which subsequently led to an audiometric examination. An opinion based upon an inaccurate factual premise has no probative value and thus cannot be considered when weighing the evidence. In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court, citing its earlier decisions in Swann v. Brown, 5 Vet. App. 229 (1993) and Reonal v. Brown, 5 Vet. App. 458 (1993), reaffirmed that, in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the Veteran that have been found to be inaccurate or that are contradicted by other facts of record. Id. at 179. A February 2013 opinion by a VA audiologist also concluded that the Veteran's hearing loss and tinnitus were not due to military service or military noise exposure, noting that the Veteran did not complain of hearing loss at his separation examination. In contrast, an opinion by a private audiologist in April 2011 found it more likely than not that the Veteran's current hearing loss and tinnitus were related to in-service noise exposure. Both audiologists reviewed the Veteran's claims file and both supported their conclusions with citations to medical treatises and a justifying rationale for their opinion. As such, both opinions are adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the above, the Board finds that the evidence is in equipoise as to whether the Veteran's tinnitus and bilateral hearing loss are related to service. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus and bilateral hearing loss. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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