Citation Nr: 1339976 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-30 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967. This appeal to the Board of Veterans' Appeals (Board) is from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are duplicative of the evidence in the paper claims file. FINDING OF FACT Resolving all reasonable doubt in his favor, bilateral hearing loss had its onset in service. CONCLUSION OF LAW The Veteran's bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant service connection for bilateral hearing loss herein constitutes a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran seeks entitlement to service connection for bilateral hearing loss. He reports that he has had hearing loss since service and cites his in-service exposure to acoustic trauma as the cause of his disability. To establish service connection, there must be: (1) competent and credible evidence of a diagnosis of a current disability; (2) competent and credible evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Organic diseases of the nervous system - such as sensorineural hearing loss - will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). However, according to VA standards, impaired hearing only will be considered to be an actual 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 thresholds for at least three of these frequencies are 26 decibels or greater; or when the Veteran's speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. For service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, or even within the one-year presumptive period following discharge, although a hearing loss disability by these standards of § 3.385 must be currently present to have a ratable disability. If there is current ratable hearing loss disability, then service connection is possible if this current disability can be adequately linked to the Veteran's military service as opposed to other unrelated factors. 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 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. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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). Moreover, the 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). 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."). The service treatment records do not contain any complaints, treatment, or diagnoses pertaining to bilateral hearing loss. However, he competently reports the onset of his hearing loss disability as a result of his military service and the evidence shows he has bilateral hearing loss. Specifically, the report of the January 2012 VA audiological examination confirms bilateral hearing loss for VA purposes. In granting service connection for tinnitus, the RO conceded that the Veteran's military occupational specialty was as a field artillery operations and intelligence assistant in Vietnam. Therefore, his assertions of exposure to acoustic trauma because of his proximity to artillery is competent and credible and, thus, satisfactory lay evidence of service incurrence of hearing loss, even though there is no official record of such injury in service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability, including during service, even where not corroborated by contemporaneous medical evidence such as service treatment records). The Veteran reports having hearing loss since service. In January 2012, he was provided a VA audiological examination as to this determinative issue. The VA examiner determined that the Veteran's hearing loss was not caused by or a result of duties performed in the military service. The examiner noted the Veteran's hearing was within normal limits at separation. No further explanation as provided. The examiner did also indicate the Veteran was a firefighter following service but did not elaborate on why this fact would be relevant to the determination at hand. The Board notes, however, this examiner also concluded that the Veteran's tinnitus was the result of his military service, including specifically to acoustic trauma or noise exposure. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) determined a VA examination was inadequate because the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the service treatment records to provide a negative opinion). As previously noted, in another precedent case, Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit addressed lay evidence as potentially competent to support presence of disability, including during service, even where not corroborated by contemporaneous medical evidence such as service treatment records. The Board finds the Veteran's account of being exposed to acoustic trauma in service and having diminished hearing acuity since service to be credible. As such, resolving all reasonable doubt in his favor, the Board finds that the Veteran's bilateral hearing loss is of service origin and thus service connection is warranted. 38 C.F.R. § 3.102; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs