Citation Nr: 1301754 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-45 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from October 1950 to August 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, wherein the RO "reopened" previously denied claims of service connection for bilateral hearing loss and tinnitus and denied those claims on the merits. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. By a May 2005 decision, the RO denied claims of service connection for bilateral hearing loss and tinnitus. 2. Evidence received since the May 2005 rating decision relates to unestablished facts necessary to substantiate the claims of service connection for bilateral hearing loss and tinnitus and it raises a reasonable possibility of substantiating the underlying claims. 3. The Veteran does not have hearing loss or tinnitus that is attributable to his active military service. CONCLUSIONS OF LAW 1. A May 2005 rating decision, which denied service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has been submitted since the May 2005 rating decision; as a result, the claims of entitlement to service connection for hearing loss and tinnitus are reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2012). 3. The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service; sensorineural hearing loss may not be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 4. The Veteran does not have tinnitus that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to notify with respect to a petition to reopen a previously disallowed claim, VA must also advise the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). This requires VA to look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Id. at 9-10. In March 2009, the RO received the Veteran's petition to reopen his previously denied claim of service connection for hearing loss and tinnitus. In April 2009, the RO sent to him a letter wherein he was notified regarding the basis upon which his claims of service connection for hearing loss and tinnitus were previously denied and informed him that he needed to submit new and material evidence. The letter also advised the Veteran of the definition of such. The letter further informed the Veteran of how to substantiate the underlying claims for service connection and advised him of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the April 2009 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a) and Kent, supra, and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board is satisfied that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), VA treatment records, VA examination reports, private medical evidence, and statements from the Veteran. Further, the Veteran has been afforded multiple VA examinations in connection with his claims for service connection for hearing loss and tinnitus. A review of the examination reports reveals that the examiners reviewed the claims folder and considered the lay contentions of the Veteran, as well as the private opinion of record, before expressing an opinion regarding the likelihood that the Veteran has hearing loss or tinnitus related to service. The Board thus finds that the Veteran has been afforded an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); II. Petition to Reopen By way of a May 2005 rating decision, the Veteran was denied service connection for hearing loss and tinnitus. The Veteran did not disagree with the May 2005 RO decision and that decision therefore became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2004). As a result of the finality of the May 2005 rating decision, the Veteran's claims of service connection for hearing loss and tinnitus may now be considered on the merits only if new and material evidence has been received. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); 38 C.F.R. § 3.156 (2012). Section 3.156(a) of title 38, Code of Federal Regulations provides the following definitions of new and material evidence: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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); see Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that it must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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 that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384; see Butler v. Brown, 9 Vet. App. 167, 171 (1996). To determine whether new and material evidence has in fact been submitted, the Board first must compare the evidence submitted since the previous final denial with evidence previously of record. If the newly submitted evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record, it will be considered "new evidence" under 38 C.F.R. § 3.156(a). If the evidence is in fact new, the Board will then consider whether it is also material. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. In this case, the evidence of record at the time of the May 2005 RO decision included: the Veteran's STRs showing normal hearing per whispered voice tests at entrance to and separate from service; VA treatment records showing treatment related to hearing loss; and the report of an April 2005 VA audiology examination that contained a negative opinion regarding an association between the Veteran's hearing loss and/or tinnitus and service. In May 2005, the RO denied service connection for a bilateral hearing loss and tinnitus upon finding that the evidence failed to demonstrate that either claimed disability was related to service. In March 2009, the Veteran sought to reopen his previously denied claims of service connection for hearing loss and tinnitus. In support of his claim, the Veteran submitted the report of a private audiological examination dated in September 2009. The private audiologist offered her opinion that the Veteran's hearing loss and tinnitus were related to his in-service noise exposure. In light of this evidence, the Board finds that the Veteran's claims of service connection for hearing loss and tinnitus must be reopened. The Board finds the private audiologist's opinion to be new evidence as it was not previously of record when the prior decision was made. That is, the previous evidence failed to contain evidence linking the Veteran's hearing loss and/or tinnitus to service. Further, it is material because it is supporting evidence of a nexus between the Veteran's alleged tinnitus and diagnosed hearing loss and service. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (establishing service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability). As a result, the Board finds that the September 2009 private audiology examination report, the information contained therein being presumed credible, see Justus, supra, constitutes new and material evidence. Accordingly, the claims of service connection for hearing loss and tinnitus are reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). III. Service Connection 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.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 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.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). 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); Hickson, supra. Alternatively, the second and third elements of service connection can be demonstrated through continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if it is demonstrated that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). At the outset, the Board notes that evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2012). Further, in service noise exposure has been conceded. As noted by the RO in its October 2010 examination request, the Veteran's military occupational specialty (MOS) was that of construction mechanic, vehicle mechanic, and maintenance technician and noise exposure consistent with those occupations was conceded. See Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus, Fast Letter 10-35 (Dep't of Veterans Affairs, Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event). Thus, the question is one of nexus. Relevant to the issue of nexus, the record contains the report of an April 2005 VA examination. The VA audiologist noted the Veteran's history of in-service noise exposure, as well as his post-service noise exposure from working in construction. The Veteran reported that in September 2004, he suffered a sudden and profound degree of sensorineural hearing loss in his left ear, the etiology of which was and is unknown. The VA audiologist noted that only whispered voice tests were done in service, which test is no longer considered a valid measure of hearing. The examination report also records the Veteran's complaints of constant bilateral tinnitus. The Veteran could not, however, point to a date of onset. Regarding the etiology of the Veteran's current hearing loss and reported tinnitus, the VA audiologist noted that although the Veteran was exposed to acoustic trauma in service, his post-service noise exposure and ear-related medical history was significant. The VA audiologist thus opined that it was less likely than not that the Veteran's hearing loss and/or tinnitus was caused by or a result of military service. He based his opinion on the Veteran's post-military auditory history and the fact that he did not file a claim for service connection for hearing loss until 50 years after service. As noted above, the Veteran submitted a statement from a private audiologist who had performed an audiological examination in September 2009. The private audiologist noted the Veteran's report of in-service and post-service noise exposure, but stated that the Veteran had indicated mandatory hearing protection when working with loud machinery post-service. Regarding his sudden onset of left ear hearing loss, the Veteran stated that the cause was thought to be viral, but etiology was unknown. The Veteran also reported tinnitus that began in service. The private audiologist similarly noted that whispered voice tests provided no frequency specific information, but stated that it is documented in histopathology literature that outer hair cell damage in the cochlea occurs prior to an individual showing a threshold shift on an audiogram. The private audiologist then offered her opinion that it was more likely than not that the Veteran's hearing loss and tinnitus was related to his military noise exposure and noted that his hearing loss may have worsened as a civilian. She based her opinion on the Veteran's case history, configuration of hearing loss, and onset of tinnitus. The Veteran was again afforded VA audiology examinations in December 2009 and October 2010. The December 2009 VA audiologist reviewed the claims folder, indicated that the whispered voice tests done in service were not valid measures of hearing loss, noted the Veteran's history of in-service noise exposure and post-service noise exposure from construction, farming, and hunting, and acknowledged his sudden onset left-ear hearing loss of unknown etiology. The examiner indicated that the Veteran's post-service noise exposure was significant. The examiner then stated that the Veteran's current loss was not consistent with that caused by military acoustic trauma. Regarding the Veteran's claimed tinnitus, the examiner noted that the Veteran had denied current complaints of tinnitus. During the October 2010 VA examination, the Veteran reported having experienced tinnitus at the time that he lost hearing in his left ear in 2004, but stated that it was of short duration and denied having again experienced tinnitus symptoms since that time. The audiologist did not render an etiology opinion regarding tinnitus on account of the fact that the Veteran had denied tinnitus. Regarding the Veteran's diagnosed hearing loss, the VA audiologist opined that it was less likely than not that the Veteran's hearing loss was caused by or the result of acoustic trauma in service. The audiologist acknowledged that the Veteran may have been exposed to high risk noise levels during service and also considered the positive nexus opinion rendered by the private audiologist, but stated that that opinion was undermined by the Institute of Medicine's (IOM's) report on noise exposure. Specifically, the VA audiologist indicated that the IOM had concluded that noise-induced hearing loss occurred immediately and that there was no scientific basis for delayed onset noise-induced hearing loss. The audiologist stated that the IOM report contradicted the private audiologist's opinion regarding histopathologic studies. The audiologist also indicated that the audiometric configuration of the Veteran's hearing loss was not consistent with acoustic trauma as there was loss in the mid-frequencies, but no audiometric recovery in the higher frequencies. In consideration of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss. In this regard, the Board finds most probative the opinion rendered by the VA audiologist in October 2010, as that opinion was based on consideration of all evidence of record, to include the positive opinion rendered by the private audiologist, and is supported by clear medical principles. Notably, the October 2010 VA audiologist provided sound reasoning for why the private audiologist's opinion should be discounted. Not only did the October 2010 VA audiologist discuss the IOM's findings regarding the possibility of delayed onset hearing loss, but the audiologist also specifically indicated why audiometric data did not support a finding of noise-induced hearing loss. This is particularly important where, as here, the Veteran has asserted his belief that his current hearing loss is related to acoustic trauma in service and has rebutted findings regarding any significant post-service noise exposure, stating that he wore hearing protection or engaged only minimally in recreational activities resulting in noise exposure. Indeed, it is clear from the October 2010 VA audiologist's discussion of the Veteran's hearing loss that her negative opinion was not based on the presence of post-service noise exposure, but rather on the lack of objective evidence demonstrating noise-induced hearing loss. Further, while the private audiologist based her positive opinion, in part, on the Veteran's configuration of hearing loss, she did discuss the specific configuration of the Veteran's hearing loss or state why such configuration suggested noise-induced hearing loss. As the October 2010 VA audiologist provided specific reasons for why the Veteran's hearing loss configuration did not suggest noise-induced hearing loss, the Board finds that opinion more probative than the private audiologist's opinion, as the conclusions stated therein are supported by a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that the requirement "that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two," is to ensure that the Board is able to weigh multiple medical opinions against each other); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As to any contention by the Veteran that because he was exposed to loud noises in service, his current hearing loss must therefore be etiologically related to that in-service exposure, the Board notes that generally etiology of dysfunctions and disorders is a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion with regard to his hearing loss especially in light of the medical opinions to the contrary. See Jandreau, supra; Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, although the Veteran believes his hearing loss to be related to his in-service noise exposure, the Board finds the medical evidence of record to be more probative on the issue of nexus. The October 2010 VA audiologist provided a medical explanation for why the Veteran's theory of the case should be rejected. The Board is persuaded by the audiologist's explanation because of her expertise and because her opinion report contains specific supporting data, such as the IOM report and objective test results. Further, neither of the other VA audiologists suggested a link between the Veteran's current hearing loss and service. Accordingly, because the preponderance of the evidence is against the Veteran's claim, his claim of service connection for hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990); 38 C.F.R. § 3.102 (2012). The Board also finds the preponderance of the evidence to be against the Veteran's claim of service connection for tinnitus. At the outset, the Board notes that "ringing in the ears is capable of lay observation" and, as such, a veteran is competent to testify as to that symptom. Charles v. Principi, 16 Vet. App. 370, 374 (2002). It is questionable, however, whether the Veteran indeed experiences tinnitus. While he reported tinnitus in April 2005, prior to the filing of his current claim, and to the private audiologist in September 2009, he denied tinnitus during the December 2009 and October 2010 VA audiology examinations. Indeed, during the October 2010 VA examination, the Veteran stated that he had experienced tinnitus in 2004 at the time of his sudden onset left-ear hearing loss, but that it had resolved and that he had not experienced any such symptoms since that time. Regardless, however, of whether the Veteran has had tinnitus at any point during the pendency of his current claim, the evidence fails to demonstrate that any such tinnitus is related to service such that a finding of service connection can be made. In this regard, the Board has considered the private audiologist's opinion that the Veteran's tinnitus is related to service. The basis of that opinion is apparently the Veteran's own statement that tinnitus began while serving in the military. The Veteran's STRs, however, fail to contain any indication of tinnitus in service. Notably, the Veteran's July 1954 separation examination report documents painful wrists, migraines, eye trouble, mild sea and air sickness, a pre-service right foot injury, appendicitis, and a sore rectum on occasion, but makes no mention of any tinnitus or related symptomatology. If the Veteran had experienced ringing in his ears in service, it seems apparent that he would have reported that during his examination. The Veteran also did not indicate when his tinnitus began on his initial application for VA disability compensation, filed in December 2004. Further, none of the VA treatment records show treatment for, or complaints of, tinnitus. Moreover, during the April 2005 VA examination, the Veteran "could not decide on a date" of onset of his tinnitus. The Veteran's credibility in reporting the onset of tinnitus to have been in service is thus comprised by this contradictory evidence and his lay statement, as recorded in the September 2009, private audiological examination report, is therefore afforded little probative weight. Further, even if the Veteran did have tinnitus in service, the evidence does not demonstrate a continuity of symptomatology since that time. He did not report tinnitus continuously since service during his April 2005 VA examination. He denied tinnitus during the December 2009 VA examination and in October 2010, the Veteran reported tinnitus briefly in 2004, but stated that he had not experienced any symptoms since that time. This evidence preponderates against a finding that the Veteran has experienced continuity of symptomatology since his period of active military service. The Board thus finds that the lack of continuity of documented symptomatology either during or subsequent to service weighs against the Veteran's claim for service connection for tinnitus. In the absence of competent evidence of a link between the Veteran's military service and his tinnitus, service connection for tinnitus may not be granted. 38 C.F.R. § 3.303; see Davidson and Savage, both supra. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs