Citation Nr: 1604069 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 13-21 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1971. Award of the Combat Infantry Badge is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In November 2015, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims folder. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS). Any future consideration of the Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran currently has a bilateral hearing loss disability and tinnitus. 2. The Veteran had significant noise exposure during service. 3. The competent and probative evidence of record establishes a relationship between the Veteran's noise exposure during service and his current bilateral hearing loss disability and tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015). 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Because the Board is granting in full the claimed entitlement to service connection for bilateral hearing loss and for tinnitus, any error committed by VA with respect to the duty to notify or the duty to assist would be harmless error and need not be considered in this order. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Legal criteria of service connection Generally, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). In order to establish service connection for a claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in active service. See 38 C.F.R. § 3.303(d) (2015); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b) (West 2014); 38 C.F.R. § 3.304(d) (2015). Section 1154(b) can be used only to determine that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996); Gregory v. Brown, 8 Vet. App. 563, 567 (1996); Kessel v. West, 13 Vet. App. 9 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). A claim will be granted upon an approximate balance of positive and negative evidence. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran seeks entitlement to service connection for a bilateral hearing loss disability and tinnitus. See Veteran's claim of June 2011. The Veteran has auditory thresholds of 35, 50, 60, 65, and 70 decibels in the right ear, and auditory thresholds of 40, 45, 50, 70 and 85 decibels in the left ear, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. See VA examination report of June 2012. These audiological findings represent a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2015). The Veteran has been diagnosed with sensorineural hearing loss in both ears and tinnitus. See VA examination report of June 2012. Hickson element (1) is thus met with respect to both claims. Hickson element (2), an in-service incurrence of a disease or injury, is also met as to both claims. The Veteran's service treatment records do not show complaints of, or treatment for, hearing loss or ringing in the ears. The Veteran denied hearing loss in the report of his March 1971 separation examination, which found the Veteran's hearing to be within normal limits for VA purposes (auditory threshold of 0 for both ears at the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz). The Veteran states, however, that he experienced hearing loss and tinnitus during service as a result of harmful noise during one year of infantry service in Vietnam, specifically the numerous firefights and exposure to various explosions and the firing of weapons without hearing protection. See VA Form 9 of July 2013; transcript of November 2015 Board hearing. The Veteran's DD 214 record establishes his military occupational specialty of light weapons infantry. The Veteran's military service, as credibly described by the Veteran, is consistent with exposure to harmful noise. See 38 U.S.C.A § 1154 (West 2014). In addition, the Veteran is competent to report obvious symptoms that he has experienced, such as hearing difficulty and ringing in the ears. See 38 C.F.R. § 3.159(a)(2) (2015); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence). The Veteran's receipt of the Combat Infantry Badge establishes that he engaged in combat with the enemy in active service during a period of war. Therefore, 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) apply with respect to the Veteran's contention that he had harmful noise exposure during service. The Board considers his statements regarding the in-service exposure to harmful noise to be credible and consistent with his combat military service. The analysis next turns to Hickson element (3) concerning a nexus between an in-service injury and a current disability. The Board finds that the weight of the competent and probative evidence of record establishes that the Veteran's current bilateral hearing loss disability and tinnitus are related to his military service. The Veteran's private audiologist has provided positive nexus opinions. See November 2015 and September 2015 letters of Dr. A. C. The conclusions are based on the Veteran's "repeated exposure to gunfire on the front line, on a daily basis during his time in Vietnam." The Veteran's in-service noise exposure was considered by the doctor to have "very likely caused his tinnitus and hearing loss." See November 2015 letter of Dr. A. C. Evidence that tends to weigh against finding a connection between the Veteran's current disabilities and his military service is the negative nexus opinion of the June 2012 VA examination report. The examiner's stated rationale was: "[T]here is no evidence of hearing loss and or tinnitus while on active duty - current condition is more likely than not related to his civilian occupational noise exposure as a farmer." The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A factor for the Board to consider in determining the probative value to be assigned to a medical opinion is whether the medical expert was fully informed of the medical history of the case. VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Although the 2012 VA examiner stated that the Veteran's claims folder had been reviewed, the Veteran's reported noise exposure during service was not addressed. See Veteran's statement attached to claim of June 2011. Because the VA examiner did not take up the Veteran's account of the onset and history of his disabilities or the circumstances of his service, the Board finds the rationale of the VA examiner to be inadequate for evaluation purposes. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Veteran's statements regarding symptoms should have formed part of the examiner's analysis, and in any event the reported symptoms could not be found to lack credibility merely because there is no confirmatory medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gardin v. Shinseki, 613 F.3d 1374 (Fed. Cir. 2010). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The absence of documented hearing loss when the Veteran left service would not alone foreclose a grant of service connection for subsequently demonstrated hearing loss. Furthermore, the Veteran has credibly testified that he did not report his tinnitus during service because ringing in the ears seemed "minimal when you're loading up someone with no legs," and because he thought at that time that the condition would eventually resolve itself. See transcript of November 2015 Board hearing. The VA examiner, while not considering the Veteran's report of acoustic trauma during service, attributed the Veteran's hearing loss instead to "civilian occupational noise exposure as a farmer." Significantly, the examiner's report cites no basis in the record for finding that the Veteran was exposed to loud noise as a farmer, and the Board finds no such evidence of record. The report does not attribute any statement by the Veteran to that effect. In fact, the Veteran has testified that the level of post-service noise to which he was exposed as a farmer was "very light" and that he used ear protection when necessary. See transcript of November 2015 Board hearing. According significant probative value to the private audiological opinions linking the Veteran's current hearing loss and tinnitus to service, the Board finds that the weight of the competent and probative evidence of record establishes a relationship between service and the Veteran's current bilateral hearing loss disability and tinnitus. Service connection for bilateral hearing loss and tinnitus is warranted. ORDER Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is granted. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs