Citation Nr: 1302164	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  08-02 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Columbia, South Carolina



THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for left ear hearing loss.

2.  Entitlement to service connection for right ear hearing loss.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

G. Jackson, Counsel
INTRODUCTION

The Veteran had active military service from December 1971 to December 1974.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Board remanded the case for further development in December 2011.  That development was completed, and the case has since been returned to the Board for appellate review.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The documents in the electronic file have been reviewed and pertinent records will be addressed in this decision herein below. 


FINDINGS OF FACT

1.  The Veteran's claim for service connection for left ear hearing loss was previously denied by the RO in rating decisions issued in November 1992 and August 2003.  The Veteran did not appeal those decisions, and there was no evidence received within one year of their issuance.  

2.  The evidence received since the August 2003 rating decision, by itself, or in conjunction with previously considered evidence, is either cumulative or redundant of evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left ear hearing loss.

3.  Right ear hearing loss did not manifest during service or within one year thereafter and has not been shown to be causally or etiologically related to the veteran's military service. 

CONCLUSIONS OF LAW

1.  The November 1992 and August 2003 rating decisions, which denied service connection for left ear hearing loss, are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 

2.  The evidence received subsequent to the August 2003 rating decision is not new and material, and the claim for service connection for left ear hearing loss is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 

3.  Right ear hearing loss was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b) (2011).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Pelegrini, 18 Vet. App. at 121.

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court of Appeals for Veterans Claims (Court) held that the law requires VA to look at the bases for the denial in the prior decision and to respond with notice 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. 

In this case, in a May 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for right ear hearing loss, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The letter advised the Veteran of how disability evaluations and effective dates are assigned and of the type of evidence which impacts those determinations.  As to the request to reopen the claim for entitlement to service connection for left ear hearing loss, the letter described what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial.  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, private treatment records, and VA treatment records.  The Veteran has not identified any outstanding records that are pertinent to the claims being decided herein.

In addition, the Veteran was afforded a VA examination in January 2012 in connection with his claim for service connection for right ear hearing loss.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the January 2012 VA examination and medical opinion obtained in this case are adequate, as they are predicated on a full reading of the Veteran's claims file.  The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed.  In fact, the examiner specifically discussed the findings in service and how hearing loss generally presents or develops when due to noise exposure.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). 

The Board does acknowledge the contention of the Veteran's representative in a November 2012 written brief presentation that the January 2012 VA examiner incorrectly based his opinion on the fact that the Veteran had hearing loss that preexisted service.  However, contrary to the representative's contention, the examiner specifically noted that the Veteran had normal right ear hearing at the time of his entrance, as opposed to his left ear which did have preexisting left ear hearing loss.  Therefore, the Board finds this argument to be without merit.  

Similarly, the Board recognizes the Veteran's representative's assertion in November 2012 that a remand is warranted to comply with the December 2011 Board remand directives.  See Stegall v. West, 11 Vet. App. 268, 270-71 (1998).  Specifically, the Veteran's representative argues that requested VA treatment records, notably the records of a March 2009 audiological evaluation, were not obtained.  However, review of the claims file reveals that the VA treatment records dated through August 2012, including the records of the March 2009 audiological evaluation, were in fact requested.  Moreover, a review of the Virtual VA electronic claims file associated with the Veteran's claim shows that the records were included in the Veteran's Virtual VA electronic claims file.  Thus, the Board finds that there was substantial compliance with the December 2011 remand directives.  Accordingly, no further remand is necessary. See Stegall v. West, 11 Vet. App. at 270-71 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008).

The Board also notes that the Veteran failed to report for a January 2009 Board video-conference hearing.  In March 2009, the Veteran requested that his Board hearing be rescheduled.  However, in April 2009, the Board denied the Veteran's request concluding that the Veteran had not demonstrated good cause for his failure to appear at the originally scheduled January 2009 hearing.  In this regard, the Board noted that the Veteran had not submitted his request for a new hearing within 15 days of the originally scheduled January 2009 hearing and had not indicated why a timely request was not submitted.  38 C.F.R. § 20.704 (2011).   Therefore, the Board finds that there is no outstanding hearing request.

Based on the foregoing, the Board concludes that there has been compliance with the duty to notify and assist provisions.  The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by providing evidence and argument and presenting for a VA examination.  Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).


Laws and Regulations

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). 

For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 

The absence of in-service 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 service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss 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). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 


I.  Left Ear Hearing Loss 

The Board observes that the Veteran's claim for service connection for left ear hearing loss was previously considered and denied by the RO in a rating decision dated in November 1992.  The evidence of record at the time of the November 1995 denial included the Veteran's service treatment records.  In that decision, the RO found that the Veteran's preexisting left ear hearing loss was not aggravated beyond the normal course during his period of service.  In this regard, the RO noted that the pure tone thresholds, in decibels, were as follows on entrance examination:



HERTZ




500
1000
2000
3000
4000
LEFT

70
65

80

 Pure tone thresholds, in decibels, were as follows on separation examination:



HERTZ




500
1000
2000
3000
4000
LEFT

74
60

50

The Veteran was notified of the November 1992 rating decision and of his appellate rights, but he did not submit a notice of disagreement with that decision.  In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.   Moreover, the Board notes that the Veteran did not submit any evidence or other information within one year of the issuance of that decision.  38 C.F.R. § 3.156(b).  Therefore, the Board finds that the November 1992 rating decision became final.  

The Veteran later submitted an application in May 2003 to reopen his claim for service connection for left ear hearing loss, but the RO denied that claim in an August 2003 rating decision.  The evidence of record at the time of the August 2003 rating decision included VA treatment records dated from November 1996 to May 2003, as well as the Veteran's service treatment records.  In that decision, the RO found that the Veteran did not submit new and material evidence showing that his preexisting left ear hearing loss was aggravated during his period of service.  The Veteran was notified of the decision and of his appellate rights, but he did not appeal.  Moreover, there was no evidence or other information submitted within one year of the rating decision. 38 C.F.R. § 3.156(b).  Therefore, the Board finds that the August 2003 rating decision is final.

The Veteran subsequently submitted his current application to reopen his claim for service connection for left ear hearing loss in May 2007.  The August 2007 rating decision now on appeal denied the Veteran's claim on the basis that new and material evidence had not been submitted. 

The Board, in the first instance, must rule on the matter of reopening a claim.  The Board has a responsibility to consider whether it is proper for a claim to be reopened, because reopening is jurisdictional.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108.  For applications to reopen filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).  To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).

The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. 

The evidence associated with the Veteran's claims file at the time that the August 2003 rating decision was issued includes VA medical records, private medical records, and a January 2012 VA examination, as well as the Veteran's own statements. 

With respect to the additional VA medical records and private medical records, the Board finds that they are new in that they were certainly not of record at the time of the August 2003 rating decision.  However, the majority of those records do not document any complaints, treatment, or diagnosis of left ear hearing loss, and thus, they are not material.  The Board does observe that there are some records pertaining to the Veteran's left ear hearing loss.  In this regard, an August 2007 private treatment record simply indicates that the Veteran has had no hearing in his left ear since 1971.  Notably, there is no discussion as to whether there was any aggravation of his preexisting left ear hearing loss during his period of service.  An October 2007 VA treatment record also reflects the Veteran's report of left ear hearing loss due to contraction of mumps during childhood and his report of a history of noise exposure during his period of service.  Again, absent in the October 2007 record and any other VA treatment record dated through August 2012 is any discussion of aggravation of his preexisting hearing loss during his period of service.  As such, the records do not relate to an unestablished necessary to substantiate the claim.  Rather, they note the onset of the Veteran's left ear hearing loss prior to service and a current diagnosis, which was already established at the time of the prior rating decision.  Therefore, the Board finds that the VA medical records and private medical records are not new and material. 

Similarly, the Board finds that the January 2012 VA examination report is new in that it was not of record at the time of August 2003 rating decision.  However, the report documents the examiner's opinion that the Veteran's  preexisting left ear hearing loss was not aggravated beyond normal progression during his period of military service.  Thus, the report does not relate to an unestablished fact necessary to substantiate the claim, as it actually provides a negative nexus opinion.  Therefore, the Board finds that the January 2012 VA examination report does not constitute new and material evidence.  

With respect to the Veteran's statements, the Board also finds that they are not sufficient to reopen the previously denied claim.  In this regard, the Veteran stated in his May 2007 claim that he manned the gun mounts in service without hearing protection.  He also submitted a January 2008 VA Form 9 in which he asserted that his hearing was damaged in service.  His representative further indicated in November 2012 that it was their contention that the Veteran's hearing loss can be attributed to acoustic trauma in service.  The Board finds these statements to be cumulative and redundant of the evidence considered at the time of the August 2003 rating decision.  In fact, he had previously stated in his May 2003 claim that his hearing loss was a result from his three years of service on ships working in gun mounts where he was exposed to unprotected noise levels.  As such, these assertions were previously considered by the RO, and therefore, the lay statements are not new and material evidence.  

Significantly, the evidence missing at the time of the August 2003 rating decision continues to be absent.  Specifically, there remains no evidence showing that the Veteran's hearing loss worsened during his period of service or was aggravated by such service.  Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran's previously denied claim for service connection for left ear hearing loss. 


II.  Right Ear Hearing Loss

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for right ear hearing loss.  His service treatment records are negative for any actual complaints, treatment, or diagnosis of right ear hearing loss.  A November 1972 documents treatment for left otitis externa, but objectively, the right ear was clear.  A March 1973 service treatment record also reflects the Veteran's complaint of decreased hearing on the left side, but there was no mention of right hearing loss.  The examiner reported that the Veteran had recently been discharged following hospitalization for treatment of an ear infection.  Serial audiograms had shown progressive improvement, and it was specifically noted that the last one showed normal hearing on the right and minimal high frequency hearing loss on the left.  The Veteran complained of marked left ear hearing loss, which he said were unchanged since his hospitalization.  The pure tone thresholds, in decibels, were as follows:



HERTZ




500
1000
2000
3000
4000
RIGHT

60
50
65
65
 
Despite these findings, the examiner's specifically indicated that his impression was "doubt loss as recorded."   Moreover, on November 1974 separation examination, the pure tone thresholds, in decibels, were as follows:



HERTZ




500
1000
2000
3000
4000
RIGHT

25
20
28
39

These findings affirmatively show that the Veteran did not have right ear hearing loss at the time of his separation from service as defined by 38 C.F.R. § 3.385.  The Board further notes that the Veteran did not seek treatment for right ear hearing loss within one year of his separation from service.  Indeed, the post-service evidence does not reflect any indication of hearing loss for many decades after his active military service.  The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Moreover, the Veteran and his representative have never asserted that he continued to have right ear hearing loss since service.  Therefore, the Board finds that the right ear hearing loss did not manifest in service or within one year thereafter. 

Nevertheless, the Board does note that the absence of in-service 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 service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss 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). See Hensley  v. Brown, 5 Vet. App. 155, 159 (1993). 

The Veteran has argued that he was exposed to acoustic trauma during his period of service and that this was the injury sustained from which his right ear hearing loss resulted. T he Veteran is considered competent to relate a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2).  In addition, the post-service medical records show that the Veteran has current right ear hearing loss by VA standards. See 38 C.F.R. § 3.385.  Thus, the remaining question is whether the Veteran's current right ear hearing loss is related to his noise exposure in service.  

Significantly, the competent and credible evidence weighs against a finding that the Veteran's current right ear hearing loss is related to his military service.  Significantly, the January 2012 VA examiner opined that the right ear hearing loss was less likely as not (less than 50/50 probability) caused by or a result of acoustic trauma sustained during military service.  The audiologist, after documenting a review of the Veteran's service treatment records and post-service treatment records, explained that the effects of hazardous noise exposure (i.e., hearing loss) are present at the time of injury.  Medical research concluded that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure was extremely unlikely.  Given that this Veteran had normal right ear hearing for many years after his period of service, it was less likely that his current right ear mild hearing loss was a result of military noise exposure.   

Neither the Veteran nor his representative has identified, presented, or alluded to the existence of any medical evidence or opinion to contradict the opinion of the January 2012 VA audiologist.  In short, there is no competent medical evidence to support the claim for service connection for right ear hearing loss.

The only evidence supporting the Veteran's claim are his own statements attributing his current right ear hearing loss to his military noise exposure.  However, the Board notes that the Veteran as a layperson is not capable of opining on the etiology of hearing loss, as it requires medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  Moreover, even if the Veteran were competent and credible to provide a nexus opinion, the Board finds that the January 2012 VA examiner's opinion to be more probative, particularly in light of his expertise and rationale based on medical research.  See Hayes v. Brown, 5 Vet. App. 60, 69 (1993); Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence). 

Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for right ear hearing loss. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for right ear hearing loss is not warranted.


ORDER

New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for a left ear hearing loss is denied. 

Service connection for right ear hearing loss is denied.


____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs