Citation Nr: 1031241 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 09-46 611A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES Whether new and material evidence has been received to reopen a claim of service connection for hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1953 to October 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an October 2004 rating decision, the RO denied service connection for hearing loss; the Veteran did not appeal that decision in a timely manner. 2. Evidence submitted since the RO's October 2004 rating decision, by itself or when considered with evidence previously of record, relates to an unestablished fact necessary to substantiate the service connection claim for hearing loss, and therefore raises a reasonable possibility of substantiating the issue on appeal. 3. Competent evidence has not been presented establishing onset of bilateral hearing loss during military service, or as the result of a disease or injury incurred therein. CONCLUSIONS OF LAW 1. The October 2004 rating decision which denied the Veteran service connection for hearing loss is final. 38 U.S.C.A. § 7105 (West 2002). 2. Evidence received since the October 2004 rating decision is new and material, and the service connection claim for hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. Entitlement to service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claim, has notified him of the information and evidence necessary to substantiate the claim, and has fully disclosed VA's duties to assist him. In September 2008 and April 2009 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, these letters provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, complete notice was issued prior to the July 2009 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the Veteran's application to reopen previously denied service connection claim, any question as to the adequacy of any notice provided by VA therein is rendered moot by the Board's actions in reopening this claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. He has also been afforded a VA medical examination in May 2009. The Board notes that the VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. While the Veteran has questioned the impartiality of the May 2009 VA examination, the Board finds no indication that the examiner based his conclusions on anything other than the evidence of record. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. II. New and material evidence-Hearing loss The Veteran seeks to reopen a service connection claim for hearing loss. In an October 2004 rating decision, the RO denied service connection for an acquired psychiatric disability. Because he did not file a timely notice of disagreement regarding these determinations, the October 2004 rating decision became final. 38 U.S.C.A. § 7105. During the course of this appeal, it appears the agency of original jurisdiction reopened the Veteran's service connection claim and considered it on the merits. Nevertheless, the Board must address the issue of receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Under applicable criteria, a claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. If the claim is thus reopened, it will be reviewed on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening the claim, unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992); see also Robinette v. Brown, 8 Vet. App. 69 (1995). In the present case, the Veteran has submitted additional evidence in support of his application to reopen his claim of service connection for hearing loss. For the reasons to be discussed below, at least some of this evidence is new and material, and his claim may be reopened for consideration on the merits. In support of his claim, the Veteran has submitted additional evidence, in the form of a March 2009 private medical opinion. In this statement, a private physician, W.R.F., M.D., stated the Veteran had hearing loss which has been an issue since earlier noise exposure during military service. Dr. F. also diagnosed the Veteran as having suspected severe bilateral sensorineural hearing loss due to military noise trauma. This evidence is new, in that it was not previously submitted at the time of the October 2004 denial. Additionally, the newly submitted evidence is not cumulative and redundant of evidence already of record, as it suggests that the Veteran's hearing loss results from acoustic trauma experienced during military service. No such evidence was of record at the time of the prior denial, when the RO found no competent evidence the Veteran's hearing loss was incurred in or otherwise related to military service. Next, because this evidence establishes a current diagnosis of hearing loss related to military service, it is material, as it bears directly and substantially upon the specific matters under consideration. Additionally, this evidence, by itself or in connection with evidence previously assembled, raises a reasonable possibility of substantiating the claim. Based on the above, the Board finds the aforementioned additional evidence to be both new and material. The Veteran having submitted new and material evidence, his service connection claim for hearing loss must be reopened and considered on the merits. III. Service connection-Hearing loss The Board having reopened the Veteran's service connection claim for hearing loss, it may now be considered on the merits. The Board finds no prejudice results from adjudication of this issue at this time, as this service connection claim was considered on the merits by the RO, the agency of original jurisdiction, in July 2009. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran seeks service connection for bilateral hearing loss. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be awarded for certain disabilities, such as organic diseases of the nervous system, which manifest to a compensable degree within a statutorily-prescribed period of time. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. For the purpose of applying the laws administered by VA, impaired hearing is considered a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Use of 38 C.F.R. § 3.385 to define a disability under 38 U.S.C.A. § 1110 as it pertains to hearing loss has been recognized by the Court as a reasonable interpretation of the statute. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Veteran's service treatment records indicate his hearing acuity was tested on several occasions during military service. On his entrance, separation, and periodic examinations, his hearing acuity was 15/15 on spoken and whispered voice tests. His service treatment records are otherwise silent for any indications of hearing loss or acoustic trauma. Post-service, the Veteran did not seek or report treatment for hearing loss or a disorder of the ears for many years following service separation. More recently, the Veteran has undergone both private and VA audiological examination, and a current diagnosis of bilateral hearing loss has been confirmed. On VA audiological evaluation in August 2007, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 55 65 65 65 LEFT 35 45 45 65 65 Speech audiometry revealed speech recognition ability of 58 percent in the right ear and 56 percent in the left ear. On a more recent VA audiological evaluation in May 2009, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 90 90 95 100 LEFT 60 70 70 80 85 Speech audiometry revealed speech recognition ability of 30 percent in the right ear and 32 percent in the left ear. Based on these findings, the Veteran clearly has bilateral hearing loss as defined by VA at 38 C.F.R. § 3.385. Next, as noted above, the Veteran has submitted a March 2009 private medical opinion in support of his claim. In this statement, a private physician, W.R.F., M.D., stated the Veteran had hearing loss which has been an issue since earlier noise exposure during military service. Dr. F. also diagnosed the Veteran as having suspected severe bilateral sensorineural hearing loss due to military noise trauma. Dr. F. did not further disclose the basis for his conclusion regarding the etiology of the Veteran's hearing loss, or indicate he reviewed any records of the Veteran's medical history. On VA audiological examination in May 2009, the examiner, a VA audiologist, reviewed the Veteran's claims file, to include his service treatment records. The examiner noted that the Veteran was not found to have hearing loss at any time during active military service, or for many years thereafter. The record was also negative for any in-service acoustic trauma. Regarding hearing loss due to acoustic trauma, the examiner noted that studies indicate hearing loss due to such trauma generally did not exceed 75dbs at high frequencies and 40dbs at low frequencies. Thus, the Veteran's current hearing loss was not consistent with noise-related hearing loss. Additionally, the Veteran did not seek treatment or compensation for hearing loss for many years after military service. In conclusion, the examiner found it less likely than not that the Veteran's current hearing loss was related to military service. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of service connection for hearing loss. Specifically, while the Veteran has demonstrated a current disability of hearing loss as defined at 38 C.F.R. § 3.385, the preponderance of the evidence is against a finding that the Veteran's hearing loss is related to military service. The Board notes the lengthy gap between discharge from active duty service in 1957 and the first diagnosis of hearing loss, in 2007, a gap of 50 years. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Additionally, presumptive service connection is not warranted, as the Veteran has not demonstrated an organic disorder of the nervous system which manifested to a compensable degree within one year of service separation. This same time gap between military service and the first diagnosis of hearing loss was noted by the May 2009 VA examiner, who both personally examined the Veteran and reviewed his claims file. The examiner further determined that the Veteran's current hearing loss was inconsistent with hearing loss resulting from acoustic trauma. As the VA examiner's opinion is based on a full review of the record and offers a medical basis for the conclusions reached, the Board finds it more probative than the March 2009 private opinion of Dr. F. Although the Board does not doubt Dr. F. is a competent medical professional, his opinion appears to be based solely on the Veteran's self-reported history; Dr. F. does not appear to have had the benefit of reviewing the Veteran's service treatment records, which remain free of any diagnosis of or treatment for hearing loss or acoustic trauma. Furthermore, Dr. F. did not adequately explain why the Veteran did not manifest hearing loss until many years after his reported acoustic trauma during military service. "It is the responsibility of the BVA . . . to assess the credibility and weight to be given to evidence." Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). With regard to the weight to assign to these medical opinions, the Court has held that "[t]he 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 . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [BVA as] adjudicators . . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In the present case, the Board finds the VA opinion to be more probative, as it was based on a more complete review of the Veteran's pertinent medical history. The Veteran himself has alleged that his current diagnosis of hearing loss began during or is otherwise related to military service. As a layperson, however, he is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The etiology of hearing loss, however, is a complex medical matter; thus, the Veteran's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the Veteran's service connection claim for bilateral hearing loss, and it must therefore be denied, as his current hearing loss manifested many years after service separation and has not been shown to be related to military service. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER New and material evidence having been submitted, the service connection claim for hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is denied. ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs