12-09 712
12-09 712
| Board of Vet. App. | May 5, 2017Background
- Veteran served on active duty in the Navy from June 1965 to April 1969 as a radio operator; reserve service continued through 1972.
- Veteran reported in-service exposure to traumatic noise (working as a radioman on an ATF fleet tug) and onset/continuity of tinnitus and hearing problems since service; testified at a September 2014 Board hearing.
- VA examinations (March 2011; May 2013) diagnosed bilateral sensorineural hearing loss and bilateral tinnitus; audiograms showed current ratable hearing loss under 38 C.F.R. § 3.385.
- Service treatment and reserve audiograms show threshold shifts (10 dB changes at several frequencies) between entrance and separation/reenlistment audiograms.
- VA medical opinions (May 2015 exam and March 2016 addendum) gave negative nexus opinions but were found inadequate because they did not address the Veteran’s lay testimony and relied on incomplete/inaccurate audiometric records.
- The Board found the evidence in equipoise, credited the Veteran’s lay statements and continuity of symptomatology, and resolved reasonable doubt in the Veteran’s favor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for bilateral hearing loss | Hearing loss began/was aggravated by in-service acoustic trauma and has continued since service | VA examiners: no nexus; lack of documented loss at separation and not a "standard" threshold shift | Granted; evidence equipoise and Veteran’s credible lay testimony establish nexus (benefit of the doubt) |
| Service connection for tinnitus | Tinnitus began in service from acoustic trauma and continued post-service | VA examiners: not related to service | Granted; credibility and continuity of symptomatology support service connection |
Key Cases Cited
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.) (elements required for service connection)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (competence of laypersons to report observable symptoms)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.) (lay evidence and service connection credibility)
- Hensley v. Brown, 5 Vet. App. 155 (Vet. App.) (rating criteria and separation audiogram not dispositive)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit of the doubt / reasonable doubt rule)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (Vet. App.) (requirement that medical opinions include adequate rationale)
- Reonal v. Brown, 5 Vet. App. 458 (Vet. App.) (medical opinion based on inaccurate facts has no probative value)
- Ledford v. Derwinski, 3 Vet. App. 87 (Vet. App.) (lack of documented in-service hearing loss not fatal to claim)
- Duenas v. Principi, 18 Vet. App. 512 (Vet. App.) (continuity of symptomatology suggests nexus)
- Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir.) (credibility and probative value of lay statements)
- Charles v. Principi, 16 Vet. App. 370 (Vet. App.) (use of lay evidence for continuity of symptomatology)