Citation Nr: 1300963 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-30 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence was received to reopen a claim for service connection for left ear hearing loss, and if so, whether service connection for left ear hearing loss is warranted. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from October 1965 through October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which among other issues, declined to reopen the Veteran's claim for service connection for left ear hearing loss and denied service connection for right ear hearing loss and tinnitus. The claims file was subsequently transferred to the St. Petersburg, Florida RO for further handling. A timely notice of disagreement (NOD) limited to the issues identified above was received by VA in October 2008. After a statement of the case (SOC) was issued in August 2009, the Veteran perfected his appeal later that month, via VA Form 9 substantive appeal. FINDINGS OF FACT 1. Service connection for left ear hearing loss was denied by the RO's January 1968 rating decision. The Veteran did not appeal that decision. 2. The evidence associated with the claims file since the RO's January 1968 rating decision, when considered with the evidence previously of record, relates directly to previously unestablished elements of the Veteran's claim of service connection for left ear hearing loss and raises a reasonable possibility of substantiating the claim. 3. The Veteran has current diagnoses of bilateral sensorineural hearing loss and tinnitus. 4. The Veteran's left ear hearing loss pre-existed his entry into service and was aggravated during his active duty service. 5. The Veteran's right ear sensorineural hearing loss and tinnitus were incurred during active duty service, as a result of in-service acoustic trauma. CONCLUSIONS OF LAW 1. The additional evidence associated with the claims file since the RO's January 1968 rating decision is new and material, and the Veteran's claim for service connection for left ear hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 3. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. Nevertheless, given the favorable action taken below as to the issues on appeal, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. II. New and Material Evidence By way of procedure, the Veteran's original claim for service connection for left ear hearing loss was received by VA in October 1967. That claim was denied in a January 1968 rating decision, on the basis that the evidence available at that time did not show any aggravation of left ear hearing loss that existed prior to enlistment into service. The Veteran did not subsequently appeal the January 1968 rating decision; hence, as to the issue of entitlement to service connection for left ear hearing loss, that decision is final under 38 U.S.C.A. § 7105. In February 2008, the Veteran filed the pending request to reopen his claim for service connection for left ear hearing loss. In the August 2008 rating decision, the RO determined that newly received evidence still did not show that the Veteran's left ear hearing loss was aggravated during his active duty service, and hence, declined to reopen the Veteran's claim. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156(a), "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that the evidence available at the time of the RO's final January 1968 denial included the Veteran's service treatment records, November 1967 VA examination report, and a November 1967 private treatment record from Dr. W.J.N. Neither the VA examination report nor Dr. W.J.N.'s private record pertain to the Veteran's left ear hearing loss. Since the RO's January 1968 decision, VA has received additional evidence from the Veteran consisting of new lay assertions that he experienced hearing loss during service, VA treatment records dated February 2008 through December 2008 which reflect ongoing left ear hearing loss diagnoses, and VA examination reports dated July 2008 and July 2009. Overall, and presuming the credibility of the Veteran's assertions solely for the purposes of considering whether new and material evidence has been received, the current evidentiary record appears to raise the possibility that his left ear hearing loss, which existed prior to service, was aggravated as a result of his active duty service. Hence, the Board finds that new and material evidence has been received. Accordingly, the Veteran's claim for service connection for left ear hearing loss is reopened. This claim will next be addressed by the Board on a de novo basis, an action that will not prejudice the Veteran in light of the ultimate outcome. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). III. Service Connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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 Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, specifically for cases involving hearing loss, service connection is not granted unless the claimed hearing loss is of a particular level of severity. For purposes of applying the laws administered by VA, hearing impairment will be considered a disability when the thresholds for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. If certain diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of a hearing loss during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); See also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). A. Left Ear Hearing Loss The post-service treatment records show that the Veteran has current left ear hearing loss that meets the regulatory threshold under 38 C.F.R. § 3.385. In that regard, audiometric testing performed during VA treatment in March 2008 revealed the following pure tone thresholds, expressed in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 20 25 55 60 60 Speech discrimination testing at that time showed speech recognition of 92 percent in the left ear. Audiometric testing performed during a July 2008 VA examination revealed the following pure tone thresholds in the left ear: HERTZ 500 1000 2000 3000 4000 LEFT 25 35 55 70 65 Speech discrimination testing performed at that time revealed speech recognition of 84 percent in the left ear. Since the evidence above demonstrates a current hearing loss disability in the left ear which meets the statutory threshold under 38 C.F.R. § 3.385, the disposition of the Veteran's claim for service connection for left ear hearing loss turns upon the question of whether that hearing loss is etiologically related to his active duty service. Here, the service treatment records reflect that the Veteran had hearing loss in his left ear which existed before his enlistment into service. Such hearing loss is noted in the Veteran's September 1965 enlistment examination report. Audiometric testing performed at that time revealed the following pure tone thresholds in the left ear (NOTE: prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the older ASA standards (which are expressed outside parentheses on the left) have been converted to ISO-ANSI standards (which are expressed by the figures in parentheses on the right)): HERTZ 500 1000 2000 3000 4000 LEFT 0 (15) 0 (10) 5 (15) 45 (55) 45 (50) A June 1967 service treatment record reflects a reported incident in which the Veteran did not see or hear an approaching aircraft on the runway. Repeated audiometric testing performed at that time revealed the following pure tone thresholds (once again, the expressed audiometric data are converted from the ASA standard to the ANSI standard) for the left ear: HERTZ 500 1000 2000 3000 4000 LEFT 15 (30) 5 (15) 5 (15) 55 (65) 50 (55) An October 1967 separation examination report indicates that audiometric testing was not performed during that examination. Having carefully reviewed the record, the Board finds that service connection for the Veteran's left ear hearing loss disability is warranted. In that regard, the Board observes that there was an increase in the severity of the disability in service as shown in the June 1967 test results. Therefore, the presumption of aggravation attaches, and there must be clear and unmistakable evidence that the increase was due to the natural progress of the disease to warrant denial of the claim. As noted above, the post-service treatment records reflect ongoing left ear hearing loss with diminished speech recognition ability. In the July 2008 VA examination report, the VA examiner expressed the opinion that the Veteran's left ear hearing loss was not aggravated during his active duty service. In support of this conclusion, the examiner pointed to a January 1968 record which purportedly stated, "no evidence of aggravation of left ear hearing loss during service" and determined that the service treatment records in the claims file do not show that the Veteran's left ear hearing worsened during his active duty service. The claims file does not contain any other opinions as to whether the Veteran's left ear hearing loss was aggravated during service. The Board finds that the conclusions expressed in the July 2008 VA examination are insufficient to rebut the presumption of aggravation. As discussed above, the audiometry testing performed over the course of the Veteran's active duty service indicates increased pure tone thresholds that are indicative of in-service worsening of the Veteran's left ear hearing loss, and the Veteran has presented credible lay argument of hearing problems during and since service. In view of the foregoing, the Veteran is entitled to service connection for left ear hearing loss. To that extent, this appeal is granted. B. Right Ear Hearing Loss In support of his claim for service connection for right ear hearing loss, the Veteran has asserted in his claims submissions that he sustained daily acoustic trauma during service while refueling aircraft on the flight line. The Veteran alleged further that his hearing loss began during service and have worsened since he was separated from service. Consistent with the Veteran's assertion of in-service acoustic trauma, his service treatment records tend to confirm that the Veteran was required to perform duties on the flight line. As such, the service records are consistent with the character of the Veteran's reported service. The post-service evidence shows that the Veteran also has right ear hearing loss that also meets the threshold criteria under 38 C.F.R. § 3.385. Speech discrimination testing performed during VA treatment in March 2008 revealed speech recognition ability of 92 percent in the right ear. Audiometric testing performed at that time also revealed the following pure tone results for the right ear: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 50 50 50 During the Veteran's July 2008 VA examination, the Veteran demonstrated 84 percent speech recognition ability in the right ear and the following pure tone results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 45 50 60 Otoscopic examination and tympanometry performed during the July 2008 VA examination were normal. The examiner diagnosed normal right ear hearing at 500 Hertz with mild to moderately severe sensorineural hearing loss from 1000 Hertz to 4000 Hertz, and normal left ear hearing through 500 Hertz and mild to severe sloping sensorineural hearing loss from 1000 Hertz through 4000 Hertz. As the Veteran's right ear hearing loss meets the regulatory threshold under 38 C.F.R. § 3.385, the outcome of the service connection claim will turn upon the question of whether the Veteran's right ear hearing loss is etiologically related to his active duty service. The Veteran's September 1965 enlistment examination shows that audiometric testing performed at that time revealed hearing that was within normal limits, as expressed by the following pure tone thresholds (again, the expressed audiometric data has been converted from the older ASA standard to the current ANSI standard): HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) -5 (5) -5 (5) 10 (20) 20 (25) Audiometric testing performed in May 1966 indicated pure tone results that were actually improved from those demonstrated during the enlistment examination: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) 0 (10) - 5 (10) However, audiometric testing performed in June 1967 was indicative of worsened hearing in the right ear, as expressed by the following pure tone results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 5 (15) 25 (35) 15 (20) Post-service VA treatment records, beginning in February 2008, reflect complaints by the Veteran of bilateral hearing loss. As noted above, audiometric and speech recognition testing performed during treatment in March 2008 revealed sensorineural hearing loss in the right ear. Right ear sensorineural hearing loss was confirmed during the Veteran's July 2008 VA examination. The Veteran reported in-service noise exposure consistent with that detailed above. He stated that he normally was not given hearing protection. Although the examiner noted additional post-service flight line noise exposure from the Veteran's post-service employment at Pensacola Naval Air Station, the Veteran denied post-service noise trauma from his post-service employment. The examiner opined that the Veteran's right ear hearing loss was not a result of in-service acoustic trauma. In support of this conclusion, the examiner noted that existing medical literature states that noise-induced hearing loss occurs at the time of noise exposure, and not after the noise has ceased. In providing her conclusion, however, the examiner did not address the Veteran's assertion that he first noticed his hearing loss during his active duty service, nor did she comment upon the apparent auditory shift in the Veteran's right ear between the auditory test in May 1966 and his June 1967 separation examination. As noted in the preceding section, the determination of the probative weight to be assigned to a medical opinion is based upon 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. Guerrieri, 4 Vet. App. at 470-71. In the absence of any commentary upon the Veteran's assertions of onset of hearing loss during service, and upon the apparent auditory shift that occurred between the Veteran's May 1966 audiometry test and his June 1967 separation examination, the examiner's opinion and rationale does not appear to be based upon a full and accurate medical history. Thus, the examiner's opinion concerning the etiology of right ear hearing loss is also entitled to little probative weight. By contrast, the Veteran's assertions that his hearing loss began during service is consistent with the audiometry shift that is shown in the service treatment records. Moreover, there is no contrary evidence in the record which would tend to bring the credibility of the Veteran's assertions into question. As such, the Board again assigns greater probative weight to the Veteran's assertions that his hearing loss began during service and to the objective findings reflected in the service treatment records. The audiometry results shown in the service treatment records do not indicate right ear hearing loss that meets the threshold requirement under 38 C.F.R. § 3.385. Nonetheless, the absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, service connection for hearing loss may be granted 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). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As discussed above, the Veteran's documented service is consistent with his assertions that he sustained significant acoustic trauma during service. Although the Veteran has acknowledged a long post-service career as a civilian employee at Pensacola Naval Air Station, he has credibly denied having had acoustic trauma in his post-service occupation. In view of the foregoing, and the auditory shifting (i.e., decreased right ear hearing) shown in the service treatment records, the Board finds that it is at least as likely as not that the Veteran's right ear hearing loss was incurred during service as a result of his in-service acoustic trauma. In view of the foregoing, the Veteran is also entitled to service connection for right ear hearing loss. To that extent, this appeal is granted. C. Tinnitus The Veteran has alleged in his claims submissions that he began experiencing ringing in his ears during service. Although, as noted above, the service treatment records contain evidence of increasing hearing loss during service, those records do not indicate any subjective complaints of tinnitus. VA treatment records dated March 2008 reflect that the Veteran was reporting high-pitched tinnitus. A July 2009 VA examination report expresses the opinion that the Veteran's reported tinnitus was less likely than not the result of in-service acoustic trauma. In support of this conclusion, the examiner noted the evidence is silent as to tinnitus until the Veteran's aforementioned complaints during the March 2008 VA treatment. She does not, however, comment upon the Veteran's assertions that his tinnitus began during service. In the absence of such discussion, the Board finds that the July 2009 opinion is also based upon an incomplete medical history, and as such, is entitled limited probative weight. The veteran is competent to provide a probative statement as to the existence of tinnitus during service since "ringing in the ears is capable of lay observation." See Charles v. Principi, 16 Vet. App 370, 374-75 (2002); see also Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (tinnitus as a symptom of Meniere's disease). Once evidence is determined to be competent, the Board must also determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In weighing credibility, the Board may consider factors such as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board may not consider the absence of evidence as substantive negative evidence. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); see also Forshey v. Principi, 284 F.3d 1335, 1363 (Fed.Cir.2002) (en banc) (Mayer, C.J., dissenting) (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that "[t]he absence of actual evidence is not substantive 'negative evidence' "); cf. Fed.R.Evid. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded). Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (determining that the Board was incorrect in finding that a skin disability was not "exceptionally repugnant" on the basis that no medical evidence characterized it as such). Here, the service treatment records do not contain any subjective complaints of tinnitus, nor do they express any objective findings of tinnitus. Nonetheless, there is no actual negative evidence in the record that contradicts the Veteran's assertions. Hence, the Board is compelled to find that the Veteran's assertions are credible, and thus, is entitled greater probative weight than the July 2009 VA opinion. In view of the foregoing, the Veteran is also entitled to service connection for tinnitus. To that extent, this appeal is granted. ORDER Service connection for left ear hearing loss is granted. Service connection for right ear hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs