Citation Nr: 1801520 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-12 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from October 1983 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board notes that the Veteran had requested, and was scheduled for, a Board video-conference hearing, which was to be held on March 14, 2017. The Veteran did not report for that hearing; however, the letter notifying him of the date and time of his hearing was returned as undeliverable. The Veteran then reported that the letter was sent to an incorrect address and requested that his hearing be rescheduled. However, in light of the grant in full of the claims on appeal, it unnecessary to reschedule the Veteran's hearing in this case as any error in not affording the Veteran the right to present testimony in his appeal is harmless. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss is attributable to noise exposure in service. 2. The evidence is at least evenly balanced as to whether the Veteran suffers from tinnitus that is related to noise exposure in service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (West 2017); 38 C.F.R. §§ 3.303 (2017). In addition, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009). Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding the 38 C.F.R. "§ 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[ ] of the nervous system'"). VA Adjudication Manual, M21-1, IV.ii.2.B.2.b (March 2, 2017) (noting that the Compensation Service has determined sensorineural hearing loss is an organic disease of the nervous system). For purposes of a hearing loss claim, impaired hearing will be considered a disability by VA when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz 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 (2017). In March 2010, the Veteran was afforded a VA audiological examination. A review of the audiogram shows that the Veteran has a current bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The record also contains a diagnosis of tinnitus. Specifically, a June 2009 private treatment record indicates that the Veteran has bilateral tinnitus and the March 2010 examination report notes the Veteran's complaints of constant tinnitus, bilaterally. The Board finds this evidence is sufficient to support a finding that the Veteran currently has tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (stating that "ringing in the ears is capable of lay observation and, as such, a veteran is competent to testify as to that symptom"). The Board also points out that in the examination request, the RO indicated that the Veteran was exposed to excessive noise as a radiation hazards officer in the U.S. Navy and stated that "acoustic trauma is conceded." The Board finds no reason to overturn this favorable finding, especially in light of the fact that on a medical surveillance questionnaire, completed by the Veteran duty active service in September 1988, the Veteran reported that while working aboard the USS Dixon, he was exposed to "continuous noise." The Board finds no reason to doubt the credibility of the Veteran's statements in this regard. Thus, in-service noise exposure is also conceded. Thus, the question as to both claimed disabilities is one of nexus. See Davidson, supra. Turning first the Veteran's claimed hearing loss, the Board acknowledges that the evidence of record is insufficient to support a finding that that the Veteran suffered left or right ear hearing loss in service or sensorineural hearing loss within one year of separation from service, so as to afford the Veteran presumptive service connection. See 38 C.F.R. §§ 3.307, 3.309. Indeed, the Veteran's in-service audiograms all show hearing within normal limits and the first post-service evidence of hearing loss is dated in June 2009. Although no hearing loss disability was shown to have existed in service, or within one year of the Veteran's separation from service, service connection can still be established on the basis of post-service evidence of a nexus between current hearing loss and service. 38 C.F.R. § 3.303(d); see Hensley v. Brown, 5 Vet. App. 155 (1993). In determining whether such a nexus exists, the Board must consider the Veteran's contentions in conjunction with the circumstances of his service. 38 U.S.C.A. § 1154(a). In the instant case, the audiologist who examined the Veteran in March 2010 noted that the Veteran's service treatment records contained several in-service audiograms, all showing hearing within normal limits. The examiner additionally noted the Veteran's report of in-service noise exposure and some intermittent post-service noise exposure occupationally, but not recreationally. The examiner then opined that it was less likely than not that the Veteran's current hearing loss began with noise exposure in the military. The audiologist did not provide further rationale for the negative nexus opinion, other than to state that the opinion was based on audiometric configuration and review of the claims file. In April 2014, the Veteran submitted the report of a private audiological evaluation. It was noted that the Veteran had presented for evaluation of his hearing loss and tinnitus existent for the past four years, that he had a history of noise exposure while in service, and that he had worn hearing aids for the last two plus years. The examiner diagnosed the Veteran as having marked to severe sensorineural hearing loss, bilaterally, with mildly diminished speech discrimination, bilaterally. The examiner then stated that "[i]t appears that [the Veteran's] hearing loss is a result of noise exposure while in the United States Navy." Similar to the VA audiologist, the private clinician did not provide further rationale for the favorable nexus opinion. While it is true that a "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two," Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008), there is also no requirement imposed on a medical examiner to provide detailed reasons for an opinion, see Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Rather, an examiner is required only to consider all of the relevant evidence before forming an opinion and support his or her opinion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In the instant case, there is no indication that either clinician failed to consider any piece of relevant evidence before providing a nexus opinion regarding the Veteran's hearing loss. Although the private clinician does not appear to have reviewed the claims folder, the Board points out that the Veteran also did not report to the private clinician that his hearing loss started in service. Thus, it would appear that the private clinician had the same facts before him that the VA audiologist did; specifically, that the Veteran had in-service noise exposure and that hearing loss was diagnosed in or around 2009. Moreover, to the extent that the private clinician in part, on the service history provided by the veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Here, the Board finds the Veteran's lay statements to be credible. In addition, lack of claims file review does not in and of itself render an examination report inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("This Court, however, has not required VA medical examiners to perform a complete review of the entire claims file or state that they have done so in every instance") (citing Snuffer v. Gober, 10 Vet.App. 400, 403-04 (1997); D'Aries v. Peake, 22 Vet.App. 97, 106 (2008)). See also VAOPGCPREC 20-95 (July 14, 1995) (listing circumstances in which claims folder should be reviewed prior to VA examination, but declining to adopt a rule requiring such review in every case). Thus, given the evidence of record, the Board finds that although the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. While the VA audiologist has opined against a likely association between the Veteran's in-service noise exposure and his eventual hearing loss, the private audiologist has opined in favor of such an association. In essence, the evidence of record contains a difference of professional opinion on the matter at hand. Here, the Board can find no adequate basis to reject the evidence that is favorable to the Veteran based on a lack of rationale or expertise of the clinician. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that an award of service connection for bilateral hearing loss is warranted in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Concerning the Veteran's claim of service connection for tinnitus, the Board notes that the private clinician did not proffer an opinion regarding the etiology of the Veteran's tinnitus and March 2010 VA audiologist opined against an association between the Veteran's tinnitus and service. Notably, at the time of the March 2010 VA examination, the Veteran reported longstanding tinnitus, "since military service." However, when seen by the private clinician in 2014, the Veteran reported tinnitus of duration of four years. Resolving the reasonable doubt created by this inconsistency in favor of the Veteran, the Board finds that he has experienced tinnitus since service. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to "any other point"). Moreover, medical treatises indicate that the cause of tinnitus can usually be determined by finding the cause of the coexisting hearing loss. See, e.g., Harrison's Principles of Internal Medicine 182 (Dennis L. Kasper et al. eds., 16th ed. 2005). Under the particular circumstances presented here, the Board is persuaded that the Veteran's tinnitus can as likely as not be attributed to the same etiology as his service-connected hearing loss, i.e., in-service exposure noise exposure. Thus, resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. \ ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs