Citation Nr: 1340157	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  12-34 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Ozger-Pascu, Associate Counsel



INTRODUCTION

The Veteran served on active military duty from November 1943 to April 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for bilateral hearing loss.

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.

In October 2013, the Board requested a medical expert opinion from a member of the Veterans Health Administration (VHA).  The requested opinion was subsequently promulgated in November 2013.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); and 38 C.F.R. § 20.900(c) (2013).


FINDING OF FACT

Bilateral hearing loss had its onset in service.


CONCLUSION OF LAW

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 FINDING AND CONCLUSIONS

In this decision, the Board grants service connection for bilateral hearing loss, 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 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 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.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

The Veteran maintains that he has bilateral hearing loss due to in-service acoustic trauma.  

The evidence confirms that the Veteran was exposed to acoustic trauma in service and currently has bilateral hearing loss for VA compensation purposes.  See 38 C.F.R. § 3.385.  Thus, this case turns on whether his bilateral hearing loss is related to or had its onset in service.

The Veteran was afforded a VA examination in January 2011 and the audiologist opined that because the whispered voice test at separation was normal and that hearing loss was not documented for more than 60 years after service, he was unable to link the Veteran's hearing loss to service without resorting to mere speculation.

In October 2013 the Board requested a VHA opinion to address whether the Veteran's bilateral hearing loss is related to his service.   The VHA specialist, an otolaryngologist, opined that the Veteran's bilateral hearing loss was likely related to service.  In support of his impression, the VHA specialist cited the Veteran's prolonged or repeated exposure to airplane engine noise the unreliability of the whispered voice test at separation.  The otolaryngologist indicated that the Veteran's hearing loss was etiologically related to such noise exposure 

Based on the reasoning provided by the VHA specialist, who is an otolaryngologist, the Board finds his opinion more probative than the one offered by the VA audiologist.  As such, the Board finds that service connection is warranted.


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs