Citation Nr: 1802376 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-18 964A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Janesville, Wisconsin. The Veteran's claims file is currently under the jurisdiction of the Cheyenne, Wyoming RO. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a) (2) (West 2014). FINDINGS OF FACT 1. The probative evidence of record is at least in relative equipoise as to whether the Veteran's current bilateral hearing loss is etiologically related to his active service. 2. The probative evidence of record is at least in relative equipoise as to whether the Veteran's tinnitus is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Analysis - Bilateral Hearing Loss The Veteran contends that he currently has bilateral hearing loss that is related to in-service exposure to hazardous levels of noise as an infantryman. Specifically, he states that as an infantryman he was required to use and qualify with many types of firearms and was not provided ear protection. See, January 2016 Notice of Disagreement. To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. As to the current disability element of service connection, the November 2017 VA audiological examination report includes the following audiometric findings: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 50 50 60 LEFT 65 65 80 80 85 In addition, the Veteran had speech recognition scores of 88 percent in the right ear and 88 percent in the left ear using the Maryland CNC word list. The VA examination results reflect bilateral hearing loss disability for VA purposes, as the Veteran had auditory threshold of 40 db or greater in both ears and word recognition scores below 94 percent in both ears. Therefore, there is evidence of a current bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. With respect to an in-service injury or disease, the service treatment records are absent for any findings of hearing loss. However, the Veteran is competent to describe his in-service noise exposure, consisting of exposure to hazardous levels of noise as an infantryman, as such is that which he may discern from his senses. See Washington v. Nicholson, 19 Vet. App. 363 (2005). Further, the Board notes that the Veteran's DD Form 214 reflects that he completed the weapons infantry course. Therefore, he is considered credible in his assertions that he was exposed to noise from small weapons fire during his active service as such is consistent with the circumstance of his service. See 38 U.S.C. § 1154. The Board finds that the element of an in-service injury, consisting of acoustic trauma, has been met. The question becomes whether the Veteran's bilateral hearing loss disability is related to his in-service injury, i.e., acoustic trauma. As stated above, the Veteran contends that his current hearing loss is etiologically related to the in-service noise exposure. The Veteran, as a lay person, is competent to report symptoms such as difficulty hearing. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to relate his hearing loss to any particular cause, as such is a complex medical issue that requires medical knowledge and expertise the Veteran has not been shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, his statements do not constitute competent evidence that the current bilateral hearing loss is etiologically related to his active service and are not probative on the matter. To determine whether an etiological link exists between the Veteran's current bilateral hearing loss and his active service, the Board turns to the competent medical evidence of record. In this regard, the Board initially notes that the record contains conflicting medical opinions as to whether the Veteran's current hearing loss disability is etiologically related to his active service. The Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, 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). The Veteran was provided a VA audiological examination in August 2015. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The VA examiner did not provide an opinion as to whether the Veteran's bilateral hearing loss was at least as likely as not caused by or a result of an in-service injury or event. As rationale, the VA examiner stated that the Veteran's induction hearing tests showed normal hearing and that no testing was done upon separation. In addition, the VA examiner stated that the Veteran was a rifleman and radar mechanic during Vietnam which has high probability of noise exposure. The Board notes that the Veteran's service treatment records contain a separation audiological examination. Therefore, it is not clear from the record whether the August 2015 VA examiner reviewed the entire record. As such, the August 2015 VA opinion is entitled to little probative weight. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on an incomplete or inaccurate factual premise are not probative). The Veteran was provided a second VA (fee-based) audiological examination in November 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The VA examiner opined that the Veteran's bilateral hearing loss was at least as likely as not caused by or a result of an event in military service. As rationale, the VA (fee-based) examiner stated that the Veteran was exposed to hazardous noise exposure during service and reported having tinnitus during his active service. In addition, the VA examiner stated that exposure to hazardous noise can cause inner ear damage and the Veteran's onset of tinnitus during active service coincides with military noise exposure indicating probable inner ear damage during service. With respect to etiology, the Board finds that the evidence is in equipoise as to whether the Veteran's bilateral hearing loss is related to active service. The August 2015 VA examiner stated that an opinion could not be provided without resorting to speculation and further stated that the Veteran was not provided a hearing examination upon separation. However, as the Veteran was provided a separation examination, it is not clear that the August 2015 VA examiner reviewed the Veteran's record. On the other hand, the November 2017 VA (fee-based) examiner discussed the Veteran's reports of in-service noise exposure and commented that the Veteran stated he has had tinnitus since his in-service noise exposure which indicates the Veteran suffered inner ear damage during service. While the Board is not free to substitute its own judgment for that of a medical expert, see Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board has the authority to analyze the credibility and probative value of evidence when making factual findings. Madden v. Brown, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). In light of the above, the evidence is in equipoise as to whether the Veteran's current bilateral hearing loss is related to active service. Therefore, service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Analysis - Tinnitus The Veteran contends that he currently has tinnitus that is related to in-service exposure to hazardous levels of noise as an infantryman. Specifically, he states that as an infantryman he was required to use and qualify with many types of firearms and was not provided ear protection. See, January 2016 Notice of Disagreement. Additionally, he reported that he first noticed his tinnitus while in active service. See, November 2017 VA examination. Tinnitus is readily observable by laypersons and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran is competent to describe his tinnitus symptomatology in service and after service, and such subjective complaints have been documented by the medical evidence of record, to include the November 2017 VA examination report. As a result, the Board finds that the Veteran has a current disability of tinnitus which was initially demonstrated in service. Although the Veteran is competent to report tinnitus symptoms, he is not competent to attribute such symptoms to any particular cause. Such is a complex medical matter that does not lend itself to lay opinion. The Veteran has not been shown to have the medical training necessary to opine as to the cause of his tinnitus. See Kahana, 24 Vet. App. at 435; Jandreau, 492 F. 3d at 1377 n.4 (Fed. Cir. 2007). The Veteran has not indicated that he sought treatment for tinnitus during service, and the Veteran's service treatment records are absent for any reference to tinnitus. Nevertheless, the Veteran has asserted that he has experienced tinnitus since active service. In this regard, the Board again notes that the Veteran is deemed competent to report the presence of tinnitus as such is subject to lay observation. Tinnitus, as an organic disease of the nervous system, may be service connected where it is shown to be chronic and continuous since active service or where it manifests to a compensable degree within one year of service. See 38 C.F.R. §§ 3.303 (b), 3.309 (a). As discussed above, the Veteran has asserted that he has experienced tinnitus since active service. Although there is evidence of record against his credibility in this regard, the Board finds that, with resolution of doubt in the Veteran's favor, his assertions are credible and competent, and service connection is warranted for tinnitus. Specifically, the Veteran did not report tinnitus during active service or at the time of separation. The first recorded instance of the Veteran reporting tinnitus in the record is his claim for compensation, which was received in April 2015, approximately 47 years after his separation from active service. See VA Form 21-4138, Statement in Support of Claim, received April 2015. However, the absence of contemporaneous evidence in support of his competent assertions does not equate to contradiction of the Veteran's assertions that he has experienced symptoms continuously since active service. In this case, the Board finds that, with resolution of doubt in the Veteran's favor, service connection is warranted for tinnitus. The Board finds that the evidence is at least in relative equipoise as to whether the Veteran's tinnitus had its onset in active service. The service treatment records do not document that the Veteran complained of tinnitus during active service; however, the Veteran is considered competent and credible to identify the presence of tinnitus since his period of active service. See Charles, 16 Vet. App. at 370. In consideration of all of the evidence of record, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus had its onset in active service and will resolve the benefit of the doubt in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for tinnitus is granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs