Citation Nr: 1337761 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-15 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran had active military service from October 1959 to November 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for hearing loss and tinnitus. The Board notes that in addition to the paper claims file there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issues on appeal. The issue of hearing loss being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Tinnitus had its onset in service. CONCLUSION OF LAW Tinnitus was incurred in service. 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 FINDING AND CONCLUSIONS In this decision, the Board grants service connection for tinnitus, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. 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 continuity of his current symptomatology. 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, 581 F.3d 1313, 1316; 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, 492 F.3d 1372, 1376-77. 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, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor if testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498, 511 (1995). 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."). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran has a current diagnosis of bilateral tinnitus. Specifically, the VA examiner who conducted the August 2010 audiological examination diagnosed him as having constant tinnitus in both ears. Moreover, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran meets the requirement of a current diagnosis. Secondly, the Veteran's military occupational specialty (MOS) was that of electrician. Based on this, the RO has conceded his in-service noise exposure. Moreover, the Veteran explained in a statement from June 2010 that as an electrician, he worked in the ship's engine room where he was exposed to acoustic trauma without the benefit of hearing protection. Accordingly, the only remaining question is whether the Veteran's tinnitus is related to or had its onset in service. As stated above, the Veteran contends that his tinnitus began in service as the result of exposure to the acoustic trauma. The Veteran was provided whisper hearing examinations at induction into and separation from service, at which time his hearing was 15/15. Service treatment records (STRs) show no indication of complaint of tinnitus during service. The Board recognizes that the Veteran is competent to state that he experiences tinnitus, and that he has experienced tinnitus ever since service. Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(a)(2). Moreover, the mere fact that his account is not supported by contemporaneous clinical evidence does not render it inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports and description of the onset and recurrence of tinnitus are consistent throughout the record and supported by his MOS. Therefore, the Board finds his account of having tinnitus since service credible. Against the claim is the VA examiner's opinion of August 2010. At that time, the VA audiologist administered an audiometric examination that disclosed the Veteran has tinnitus. The audiologist opined that it is less likely as not that the tinnitus is due to miliary service, but more than likely due to noise exposure unrelated to service and/or the possible contribution of other health factors. As rationale, the audiologist explained that individuals exposed to high levels of noise will typically report tinnitus. Moreover, there was no documentation in the Veteran's file regarding tinnitus complaints in service. Additionally, the Veteran has a significant history of recreational noise exposure and possible civilian occupation noise exposure over a period of years. The Board observes that the audiologist was unable to reconcile or explain the discrepancy between her rationale that individuals exposed to high levels of noise will typically report tinnitus with her finding that the Veteran's tinnitus was not related to service but rather to post-service noise exposure. Moreover, the negative medical opinion did not give due consideration to the Veteran's competent and credible account of the onset of symptoms in service, and their recurrence thereafter. Here the Board notes that lack of contemporaneous medical records does not, in and of itself, render the Veteran's lay evidence not credible. Buchananan. Based on the foregoing, the Board finds this opinion is not probative. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's competent and credible report of experiencing tinnitus since is more probative than the VA audiological examiner's opinion, and thus grants service connection for tinnitus. 38 U.S.C.A. § 1154 (a); 38 C.F.R. § 3.303(a). ORDER Service connection for tinnitus is granted. REMAND The Veteran seeks service connection for hearing loss. He reports states that his hearing loss began in service as the result of exposure to acoustic trauma related to working as electrician in the ship's engine room, without the benefit of hearing protection. Specifically, he states that as an electrician in the Navy he had unprotected exposure to 16-cylinder diesel engines while working the switchboard in the engine room. The Veteran's MOS was that of electrician. Based on this, the RO has conceded his in-service noise exposure. At his induction and separation physical examinations the Veteran was provided whisper hearing examinations where his hearing was 15/15. His service treatment records are otherwise negative for complaints of hearing loss during service. At his August 2010 VA audiological examination, the examiner diagnosed the Veteran with hearing loss. Specifically, the examiner explained that the whisper hearing test the Veteran was administered at induction and separation "are not considered valid measurements of hearing, since they are not frequency specific and do not assess the higher frequencies. Therefore, the Veteran could have sustained some minor changes in hearing in the higher frequencies while on active duty." Moreover, "individuals that are exposed to high levels of noise typically present with a hearing loss in the higher frequencies, which is consistent with today's findings." At that examination, the Veteran reported a history of recreational and civilian noise exposure, including riding a motorcycle and working on a production line placing wrapped paper towels in boxes for shipment. He contends, however, that while riding his motorcycle he wore a helmet, which protected him from the noise associated with riding the motorcycle and that although he worked on the production line, he worked in the office, where he was not actually exposed to noise. The examiner, however, opined that the Veteran's hearing loss was not at least as likely as not due to military noise exposure but more likely than not due to civilian noise exposure, presbycusis and/or some other etiology. Based on the foregoing, the Board concludes that the medical evidence is inconsistent as to the Veteran's current hearing loss. Therefore, a remand is required to reconcile his hearing loss diagnosis with his in-service noise exposure. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge and/or were contemporaneously informed of his hearing loss symptoms in and since service, to include any possible relationship to military service as well as any medical evidence addressing whether his hearing loss is related to or had its onset in service. He should be provided an appropriate amount of time to submit this evidence. 2. Obtain, either physically or electronically, outstanding VA treatment and/or hospitalization related to the Veteran's hearing condition since April 2012. All development efforts and any negative response(s) should be associated with the claims file, to include notation that no additional records are available on the Virtual VA. 3. Schedule the Veteran for a VA audiological examination to determine the nature, onset and etiology of his hearing loss. The claims folder should be made available to and reviewed by the examiner, who should record the full history of the disorder, including the Veteran's report of his symptoms. The examiner must opine as to whether it is at least as likely as not that the Veteran has a hearing loss disability that is related to or had its onset in service, to specifically include the Veteran's report of in-service and post-service auditory trauma. The examination report should reflect consideration and analysis of all evidence of record, medical and lay, including (A) the Veteran's competent account of his in-service exposure to noise and (B) the August 2010 VA examination report. All findings and conclusions must be accompanied by a rationale and should be set forth in a legible report. 4. Then readjudicate the appeal. If the appeal is not granted in full, issue a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the claim should be returned to this Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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. 2013). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs