Citation Nr: 1336106	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  12-17 160	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1969 to October 1970.

This appeal to the Board of Veteran's Appeals (Board/BVA) is from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).


FINDING OF FACT

It is just as likely as not the Veteran's bilateral hearing loss and tinnitus are consequences of noise exposure during his military service.


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, his bilateral hearing loss and tinnitus are due to injury incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Standard of Review

In deciding these claims, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") portion of the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board addresses its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

II. The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Since in this case, however, the claims are being granted, there is no need to discuss whether there has been compliance with these duty-to-notify-and-assist obligations.  Even if, for the sake of argument, there has not been, this ultimately would be inconsequential and, therefore, at most amount to nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102.  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual 
case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim).  There simply is no such possibility in this instance.

III. Legal Criteria

In order to establish entitlement to service connection for a claimed disability, the facts must demonstrate that a disease or an injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated during service beyond its natural progression.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013).  Service connection may be granted for a disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).  In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if they become disabling to a compensable degree (generally meaning to at least 10-percent disabling) within one year of separation from service.  This presumption is rebuttable by affirmative evidence to the contrary, however.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2013).

For a showing of chronic disease in service, or with an applicable presumptive period, 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."  Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2013).  However, service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  By regulation, sensorineural hearing loss is subject to service connection based on continuity of symptomatology as an "organic disease of the nervous system."  

Moreover, VBA's M21-1MR has a section titled "Determining Impaired Hearing as a Disability," which includes the following note: "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a.

Tinnitus, on the other hand, is not a condition identified in § 3.309(a) as chronic, per se, so resultantly is not subject to this alternative continuity of symptomatology proof and pleading exception provided by § 3.303(b).  Still, tinnitus is defined as "a noise in the ear, such as ringing, buzzing, roaring, or clicking."  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1956 (31st ed. 2007).  So by its very nature, it is an inherently subjective condition.  Therefore, the Veteran is competent even as a layman to make this proclamation of continuous tinnitus since service.  See Charles v. Principi, 16 Vet. App. 370 (2002) ("ringing in the ears is capable of lay observation").

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Establishing entitlement to direct service connection requires competent and credible evidence confirming:  (1) the existence of a present disability or, at the very least, showing the Veteran has had the claimed disability at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002)); see also Caluza v. Brown, 7 Vet. App. 498 (1995).


The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible," or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible).  Only if evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465 (1994) (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).  The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).


In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is incapable of opining on matters requiring medical knowledge.  In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr, 21 Vet. App. 303 (concerning varicose veins); see also Jandreau, 492 F. 3d 1372 (a dislocated shoulder); Charles, 16 Vet. App. 370 (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

Laypersons equally have been found not competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also 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 had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604  (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

As specifically concerning claims of entitlement to service connection for hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)).

But before service connection may be granted for hearing loss, it must be of a particular level of severity.  For purposes of applying the laws administered by VA, impaired hearing only will be considered a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of these 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.

IV. Analysis

The Veteran contends he has bilateral hearing loss and tinnitus as a result of repeated exposure to excessively loud noise and consequent injury (acoustic trauma) during his service.  Specifically, he claims this occurred primarily while serving as an infantryman in Vietnam.  He says he participated in more than 25 aerial missions over hostile territory, which repeatedly exposed him to turbine noise engine without the benefit of hearing protection.

In cases, as here, where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing VA regulation, 38 C.F.R. § 3.304(d), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury.  See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Here, the Veteran's service treatment records (STRs) are unremarkable for complaints regarding or treatment for either hearing loss or tinnitus.  At the time of his pre-induction examination in April 1968, he was noted to have hearing within normal limits based upon an audiometric evaluation.  Reported puretone thresholds, in decibels, were:

HERTZ
500
1,000
2,000
3,000
4,000
RIGHT
10
10
10
--
10
LEFT
10
10
10
--
10

In October 1970, he had a separation examination that also included an audiometric evaluation.  Reported puretone thresholds, in decibels, were:

HERTZ
500
1,000
2,000
3,000
4,000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
0

In a more recent March 2012 statement, he contended that he was never given audiology examinations in service.  But based on the audiometric evaluation results indicated in his STRs, he did indeed have tests of his hearing acuity and it was determined to have been within normal limits.  But, no matter, as held in Hensley, the mere absence of evidence of hearing loss in service, including especially sufficient hearing loss to constitute an actual ratable disability, is not altogether fatal to a claim for this disability.  It is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation or even during the one-year presumptive grace period after service allowing for sensorineural hearing loss, as an organic disease of the nervous system, to initially manifest to a compensable degree (meaning to at least 10-percent disabling), although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley, 5 Vet. App. at 159.

Likewise, service connection may be granted for tinnitus or other disability diagnosed after service upon a showing of a medical nexus between the disability and injury (including the type of noise exposure claimed) or disease in service.  See, e.g., 38 C.F.R. § 3.303(d).

The Veteran provided private treatment records of an audiogram from 1995 showing what appears to have been left ear hearing loss.  It is unclear whether his speech discrimination was tested and, if it was, whether by way of the required Maryland CNC.  Audiometric testing by a private provider more recently in June 2008 revealed that the hearing threshold levels in decibels were as follows:

HERTZ
500
1,000
2,000
3,000
4,000
RIGHT
15
15
35
45
25
LEFT
30
30
70
60
65

So this time there was indication of bilateral (left and right ear) hearing loss.  Again, though, it is unclear whether speech discrimination was tested and, if it was, whether by way of the required Maryland CNC as there are no reported results.  There also is a note from the Veteran's primary care physician of record that simply states that it is as likely as not that the Veteran's bilateral hearing loss and tinnitus are related to his military service.  This note gives no basis for the opinion, however, as it does not include any test results or other probative information, therefore the Board gives it no consequent weight.

Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, although the latter is not determinative of the opinion's probative value.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

The Veteran had a VA audiology examination in December 2011.  He indicated that he had first noticed tinnitus while in the military.  Audiometric testing revealed pure tone thresholds, in decibels, as follows:


HERTZ
500
1,000
2,000
3,000
4,000
RIGHT
10
20
40
40
35
LEFT
250
35
40
55
60

His speech recognition scores using the Maryland CNC Word List were 94 percent in the right ear and 68 percent in the left ear.  The diagnoses were bilateral sensorineural hearing loss and tinnitus.  The examiner opined that the tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss.

The examiner acknowledged review of the claims file, but ultimately determined the Veteran's hearing loss and tinnitus were not caused by or a result of his military acoustic trauma.  In providing rationale for her opinion, the examiner observed that no threshold shifts were noted in the Veteran's hearing from his pre-induction exam to his separation exam.

An April 2012 letter from a private audiologist also reflects findings of hearing loss based on an audiological examination.  During his examination, the Veteran reported exposure to weapons fire on numerous occasions during basic training, but he reported wearing hearing protective devices at the time.  He also reported exposure to canon fire, firearms to include machine guns, and mortar weapon noise while serving for 14 months in Vietnam.  He reported not wearing hearing protective devices in those other capacities, and that the canon fire was so loud that he fell to his knees during some of the exposure.  He also reported first noticing the hearing loss shortly after his discharge, and that his hearing is worse on the left side.  The private audiologist made a diagnosis of mild sloping to moderate-severe predominantly sensorineural high frequency hearing loss in the right ear and precipitous moderate-severe predominantly sensorineural high frequency hearing loss in the left ear.  Word recognition was reported as 96 percent in the right ear and 80 percent in the left ear, although it is unclear if the Maryland CNC tests was used.  This evaluating audiologist explained the Veteran's hearing loss is typical of those seen in cases of excessive noise exposure and the asymmetry in hearing acuity with the left ear being worse is often seen in right-handed firearm users.  Accordingly, he concluded that it is more likely than not the Veteran's current hearing status was caused or aggravated by his firearm noise exposure that he incurred during his military service.

As already alluded to, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches."  Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993).  The credibility and weight to be attached to these opinions is within the province of the Board.  Id.  See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases).


The Veteran clearly has current bilateral hearing loss and tinnitus.  He also has sufficient hearing loss in each ear to be considered an actual ratable disability by VA standards - meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385.  Thus, the first element of each service-connection claim is satisfied inasmuch as he has at least established he has these alleged conditions.  Walker, 708 F.3d at 1333.  The question remains, however, whether there exists a correlation between his current bilateral hearing loss and/or tinnitus and the noise exposure that he concededly had while in service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

While, as mentioned, his STRs do not document the occurrence of, or treatment for, any specific incident of acoustic trauma, he is competent to assert the occurrence of relevant injury in service, including in this manner, since this is a by-product of his firsthand knowledge of a factual matter.  See Washington v. Nicholson, 19 Vet. App. 363 (2005).  Specifically, in October 2010 and March 2012 statements he reported sustaining acoustic trauma while in Vietnam, often while in combat, and stated that he first experienced tinnitus then.  In the April 2012 letter from the private audiologist, the Veteran reported first noticing hearing loss shortly after his discharge.  There is no indication the December 2011 VA examiner asked or that the Veteran reported his noise exposure in service at the time of that examination; however, the examiner did report reviewing the claims file, which, as noted above, includes statements from the Veteran regarding when he had first experienced symptoms of hearing loss and tinnitus.  Despite this, the VA examiner relied rather entirely on the absence of any objective indication of hearing loss or tinnitus in service, when comparing the results of the pre-induction and separation examinations, as reason for concluding against the claim because there had not been any characteristic threshold shift.  But see Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion).


Consider also, however, that the testing performed at time of discharge revealed better hearing than was evident during the enlistment examination.  Moreover, each examination had universal, across-the-board, findings - 10 decibel losses at all tested frequencies when examined for acceptance into service versus 0 decibel losses at all tested frequencies when examined for separation from service.  Thus, there is seemingly equal reason to question the veracity of those findings as it is to accept their validity.

But regardless of those seeming discrepancies, the reasoning underlying the VA examiner's opinion improperly relies merely on the absence of corroborating medical evidence, such as would be reflected in a worse separation audiology examination, in determining there necessarily is no nexus or correlation between the Veteran's current hearing loss and tinnitus disabilities and his military service, without addressing competent evidence of continuity of symptomatology since the injury in service, if only concerning the sensorineural hearing loss in particular.  Id.; see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) (emphasizing that "symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b)).

The Veteran's DD Form 214 confirms he served in Vietnam during the Vietnam War and reflects that his military occupational specialty (MOS) was light weapons infantryman.  The Board has found nothing in the record that contradicts his contentions concerning his noise exposure and consequent injury while in service.  In light of this confirmatory evidence, the Board accepts his assertions of noise exposure in this capacity as both competent and credible and consistent with the circumstances, conditions, and hardships of his service.  See 38 U.S.C.A. § 1154(a) and (b); 38 C.F.R. § 3.304(d).


The Board also acknowledges he is competent to proclaim having experienced both continuous hearing loss and tinnitus since his service.  See again Charles, 16 Vet. App. 370.  Specifically, he reasserted during his VA examination that he had experienced tinnitus since his service and he told the April 2012 private audiologist who also commented on the merits of this case that he first had noticed hearing loss right after his discharge.  Statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997).

Aside from that, he has submitted medical evidence also supporting his claims.  In the April 2012 letter, the private audiologist indicated the Veteran had hearing loss typical of those with excessive noise exposure, particularly for right-handed firearms users because the way the weapon is used or situated places the opposite ear (so, here, the left ear that has the greater level of hearing loss) closer to the weapon and therefore closer to the noise, which explains why the hearing in the Veteran's left ear is worse than in his right.  This commenting private audiologist also resultantly provided a positive nexus between the Veteran's hearing loss and the noise exposure he had during his service.

This April 2012 private opinion obviously conflicts with the December 2011 VA examiner's opinion regarding the purported relationship between the Veteran's bilateral hearing loss, tinnitus, and the noise exposure he had in service.  In this circumstance, it is the Board's responsibility to assess the credibility and weight to be given the evidence for versus against the claim.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  
The Board may not reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Ultimately, though, most of the probative value of an opinion comes from its underlying reasoning, not mere indication of review of the claims file, although that, too, has significance if it would have revealed relevant facts or evidence that may have affected or undermined the basis of the opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The commenting private audiologist did not indicate review of the claims file.  However, in assessing the probative value of a medical opinion, the Board must consider whether the 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 Nieves-Rodriguez, 22 Vet. App. at 303-04.  In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran.  Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.

Here, the private audiologist considered the Veteran's history of noise exposure in service, including in a combat environment.  Significantly, there is no indication the Veteran has a history of significant noise exposure other than while in the military, as he indicated in a November 2012 statement that he wore hearing protection while working in a factory after service.

The April 2012 favorable opinion was supported by rationale, specifically, the audiometric test results suggested typical hearing loss as a result of noise exposure.  And since there seemingly was only significant noise exposure in service, certainly only to the indicated level while in service, this then represents the only possible source or cause of the later diagnosed bilateral hearing loss.

The December 2011 unfavorable VA opinion was also in comparison supported by rationale, namely, an absence of a threshold shift in the Veteran's hearing from 
pre-induction to separation.  However, to reiterate, the Court has held that the absence of indication of hearing loss in service is not fatal to a claim for this disability.  See Ledford, 3 Vet. App. at 89 (1992).


Both the audiologist who performed the December 2011 VA examination and the private audiologist who provided the April 2012 opinion are competent medical authorities who had access to the pertinent facts at issue in this case, that is, the Veteran's history of noise exposure in service and not since.  Likewise, both clinicians offered opinions following their review of the results of objective audiometric testing and each opinion was supported by explanatory rationale.  The Board regards these opinions of the VA and private audiologists sufficient to place the evidence in relative equipoise on the determinative nexus issue regarding the cause of the Veteran's claimed bilateral hearing loss in terms of whether it is related or attributable to the noise exposure during his military service.  So with resolution of all reasonable doubt in his favor, the Board concludes that the criteria for service connection for bilateral hearing loss are met.  See Alemany, 9 Vet. App. at 519 (1996) (an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite or "obvious" etiology).  Rather, this need only be an "as likely as not" proposition, and in this instance it is for the reasons and bases discussed.  Hence, the claim must be granted instead of denied.  38 C.F.R. § 3.102.

Turning next to the claim for service connection for tinnitus, the Board has determined herein that the Veteran's current bilateral hearing loss is indeed related to his in-service noise exposure.  The December 2011 VA examiner conceded the Veteran's tinnitus is as likely as not a symptom of his hearing loss.  This statement, then, in turn provides medical evidence indicating his current tinnitus is proximately due to or the result of, if not aggravated by, his hearing loss.  There is no other evidence of record attributing tinnitus to another cause.  Accordingly, resolving all reasonable doubt in his favor, service connection is additionally warranted for his tinnitus as secondary to the now service-connected bilateral hearing loss.  See 38 C.F.R. § 3.310; see also Velez v. West, 11 Vet. App. 148, 158 (1998) and McQueen v. West, 13 Vet. App. 237 (1999).



ORDER

The claim of entitlement to service connection for bilateral hearing loss is granted.

The claim of entitlement to service connection for tinnitus also is granted.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs