Citation Nr: 1303477 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-51 021 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from September 1973 to September 1976. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2008 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. In a March 1979 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a hearing loss in his right ear; and the Veteran did not initiate an appeal or submit new and material evidence within the one year appeal period. 2. Evidence obtained since the March 1979 rating decision is new, but is not material as it does not raise a reasonable possibility of substantiating the Veteran's claim. 3. No evidence that has been submitted since the March 1979 rating decision would trigger VA's duty to assist the Veteran were his claim to be reopened. 4. The weight of the evidence is against a finding that the Veteran's currently diagnosed tinnitus either began during or was otherwise caused by his military service. CONCLUSIONS OF LAW 1. The March 1979 rating decision, which denied entitlement to service connection for hearing loss in the right ear, is final. 38 U.S.C.A. § 4005 (West 1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978). 2. New and material evidence has not been submitted, and the Veteran's claim for service connection for hearing loss in the right ear is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Veteran's claim of entitlement to service connection for hearing loss in the right ear was previously denied by a March 1979 rating decision. The Federal Circuit has held that a RO decision becomes final "only after the period for appeal has run," and that "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). The Court has also held that if "new and material evidence is received within one year after the date of mailing of an RO decision, it may be 'considered as having been filed in connection with the claim which was pending at the beginning of the appeal period' that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010) (emphasis added) (citation omitted). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009). The Court has noted that the assertion that RO decisions are necessarily final because a veteran fails to file a notice of disagreement "is incorrect." See Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). The Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Id. However, in this case, within a year of the March 1979 rating decision, the Veteran neither filed a notice of disagreement, nor submitted any additional evidence, and the rating decision therefore became final. 38 U.S.C.A. § 4005 (West 1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978). However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). New evidence is defined as 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). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board is whether new and material evidence has been presented to reopen the claim. At the time of the March 1979 rating decision, the evidence of record included the Veteran's service treatment records, which showed that he had right ear surgery in service to repair a ruptured ear drum. Several audiograms were also of record which showed some hearing loss in his right ear, as the Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, the audiograms failed to actually show a hearing loss disability in either ear for VA purposes. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A VA examination was also provided in March 1979, but audiometric testing again failed to show a hearing loss disability in the right ear for VA purposes; and his claim was then denied as the evidence of record did not establish a hearing loss disability in his right ear for VA purposes. Since his claim was denied, additional evidence has been presented. However, as will be discussed, at no time has evidence been submitted to establish that the Veteran has a hearing loss disability in his right ear for VA purposes; and for that reason his claim will not be reopened. Following service, the Veteran did not seek any hearing treatment for many years. He eventually sought treatment for ear problems from Dr. Rowley in 2003, but Dr. Rowley indicated in June 2004 that the air-bone gap had closed and that the Veteran had pretty much normal hearing in both ears, as shown by an audiogram. The results of audiograms from December 2003 and June 2004 were submitted, but neither shows a hearing loss disability for VA purposes. The results of the two private audiograms are in graphical form, but are clear and the Board may review them. In this regard, the Board observes that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that the Court could not interpret the results of an audiogram because interpretation required a factual finding, which is not the role of the Court in the first instance. However, the Court implied that the Board, as the finder of fact, is empowered to make factual findings in the first instance. In this role, the Board has reviewed the graphical findings of the audiological reports and determined that the results do not show a hearing loss disability in the Veteran's right ear for VA purposes. That is, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz was not 40 decibels or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz were not 26 decibels or greater on either audiogram; and the speech recognition scores were all greater than 94 percent. 38 C.F.R. § 3.385. VA treatment records have also been obtained. In February 2010, the Veteran asserted that he had decreased hearing and some hearing loss since undergoing ear surgery in service. It was noted that the Veteran was a heavy equipment operator for approximately 28 years, before retiring on account of a shoulder disability. The Veteran also testified at a hearing before the Board in January 2012, asserting that the hearing loss in his right ear was secondary to his otitis media or the in-service ear surgery. He stated that his MOS was vehicle operator, which involved delivering fuel in a very loud five ton truck with a canvas top. He recalled that his ear started draining to the point he had surgery on his right eardrum to repair a perforation. He stated that he experienced a little hearing loss in his right ear at that time, but it had continued to get worse. The Veteran was provided with a VA examination in January 2011 at which the examiner noted that the Veteran had been exposed to weapons training and truck noise in service, but then worked for the Highway Department around heavy equipment for approximately 27 years. Audiometric testing showed the following, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 0 25 As such, the hearing loss was not of such severity to be considered a disability for VA purposes. The Veteran also had speech recognition of 94 percent in both ears which is also not considered to represent a hearing disability for VA purposes. At the Veteran's hearing, his representative alleged that the Veteran had been diagnosed with hearing loss in the right ear by Roswell Ear, Nose, and Throat Allergy. To this end, the Veteran submitted a January 2011 treatment record from a Dr. Hobbs at Roswell in which she noted that the Veteran had mixed hearing loss on the right. However, Dr. Hobbs allowed that the Veteran's last audiogram was eight years earlier, and it does not appear she actually conducted any audiometric testing in conjunction with the examination. As such, her assertion that the Veteran has hearing loss in his right ear appears to be based on a 2004 audiogram which is of record but which does not show a hearing loss disability for VA purposes (although showing some hearing loss in the right ear). As such, the Board does not find that this statement by Dr. Hobbs, nor the statement from the Veteran's representative alleging hearing loss in the Veteran's ear, is sufficient to establish that the Veteran has a hearing disability in his right ear for VA purposes (that is the reason the Veteran's claim was previously denied). Thus, this evidence is not considered to be material in that it does not raise a reasonable possibility of substantiating the Veteran's claim. The Veteran has also alleged that he has hearing loss in his right ear and testimony is generally presumed to be credible for the limited purpose of determining whether to reopen a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, the Justus credibility rule is neither boundless nor blind. See Duran v. Brown, 7 Vet. App 216, 220 (1994). For example, it does not apply if the newly submitted evidence is inherently false or untrue; or if it is an outlandish claim. See id. In this case, the Board is not suggesting that the Veteran is intending to mislead VA. However, the fact remains that determining the presence of a hearing disability for VA purposes requires medical testing and is therefore outside of the realm of which the Veteran is competent to speak about. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, the Veteran's assertion that he has hearing loss in his right ear at his hearing is in essence no different than the allegation he made in 1979 when he initially filed a claim alleging that he had hearing loss in his right ear. As such, his statements now are effectively not new. The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decisionmakers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." As discussed though, the evidence here simply does not establish that the Veteran has a hearing disability in his right ear for VA purposes; and in the absence of proof of a present disability, there can be no valid claim, as a current disability is the cornerstone of a claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here the Veteran's allegations are no different now than they were when his claim was previously denied and they are not considered to be new. The medical evidence of record which has been submitted since his claim was previously denied is by definition new in that it was not previously of record. However, as described, it is not material in that it does not establish the presence of a current hearing disability for VA purposes. Moreover, even were the claim to be reopened, no additional duty to assist would be triggered as the multiple audiological tests have not shown a hearing loss disability in the Veteran's right ear for VA purposes, to include at a VA examination in 2011. As such, the Veteran's claim is not reopened and it is denied. II. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is also seeking service connection for tinnitus. He testified at a hearing before the Board in January 2012 that his tinnitus began during his military service. He has explained on several occasions that he drove a big diesel truck in service and recalled experiencing ringing in his ears while driving the trucks. He added that the windows were always open because of the heat. He stated that he had experienced the ringing in his ears before his surgery. To this end, the Veteran's MOS was a petroleum specialist, meaning that his account of driving a fuel truck is certainly plausible; and in so doing, he may have been exposed to noise. However, military noise exposure alone is not considered to be a disability; rather, the noise exposure must cause a current disability, such as tinnitus. However, service treatment records do not show any complaints of ringing at any time during the Veteran's time in service. This is particularly relevant in that the Veteran was seen for ear problems on a number of occasions, and in fact had surgery to repair a ruptured ear drum. Yet, he made no mention of any ringing in his ears. Shortly after service the Veteran filed a claim for hearing loss, but he did not mention any ringing in his ears, suggesting that he was not experiencing tinnitus at that time. In conjunction with that claim, he was provided with a VA audiometric examination in March 1979, but again no ringing was noted. In August 2008, nearly three decades after separating from service, the Veteran filed a claim for service connection for tinnitus. In conjunction with this claim, the Veteran submitted treatment records from 2003-2004 from Dr. Rowley which showed ear problems with drainage, but again no tinnitus was noted. In February 2010, the Veteran stated at a VA treatment session that he had experienced tinnitus off and on since he left service. At an RO hearing in February 2010, the Veteran testified that he continued to experience intermittent ringing. He recounted getting an ear infection in service at which time he experienced pain and some ringing. He recalled being treated with drops for the draining and he stated that the draining went away. He was asked about the pain and ringing and whether it went away, to which he replied that the pain was still there, but he did not address the ringing. He later asserted that after the surgery to correct the perforated eardrum, the ringing continued; but he denied any post-service treatment until 2004. The Veteran was provided with a VA examination in January 2011 at which the examiner noted that he had been exposed to weapons training and truck noise in service, but then worked for the Highway Department around heavy equipment for approximately 27 years. The Veteran reported that his tinnitus began at around the same time as his right eardrum perforation. The tinnitus was described as intermittent, as the Veteran denied that it was constant. After examining the Veteran and reviewing the claims file, the examiner opined that it was less likely than not that the Veteran's currently experienced tinnitus was the result of either his military noise exposure, as described, or his treatment for otitis media and a perforated tympanic membrane. In January 2012, the Veteran was seen by Dr. Hobbs. It was noted that the Veteran described his tinnitus as intermittent and ringing. She noted that the Veteran reported having experienced symptoms of tinnitus for eight years. The Court of Appeals for Veterans Claims (Court) has held that lay evidence is competent and sufficient to establish a diagnosis of a condition when 1) a lay person is competent to identify the medical condition; 2) the lay person is reporting a contemporaneous medical diagnosis; or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, lay evidence may suffice to establish the manifestations of a chronic condition during service, or within a presumptive period; and, when a condition is not chronic and there is no medical evidence of a causal nexus, lay testimony or medical evidence may establish continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). Of note, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Having reviewed the Veteran's treatment records, it is clear that he currently has tinnitus. As such, the critical question is whether his tinnitus either began during or was otherwise caused by military noise exposure or by a service connected disability. The Veteran has asserted on several occasions that his tinnitus began in service and has continued. This is indeed something that the Veteran is competent to report. However, in adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In weighing credibility, VA may consider 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 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (holding that the Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). As will be discussed, the evidence ultimately weighs against the conclusion that the Veteran's statements are sufficiently credible to establish that his tinnitus began during service and continued to the present day. To the extent that the Veteran asserts that his tinnitus began during service, service treatment records are silent for any complaints of ringing ears. This is particularly relevant in that the Veteran received considerable hearing treatment in service and even underwent ear surgery. As such, the absence of any complaints of ringing, while not in and of itself dispositive, weighs against the Veteran's claim. Approximately two years after separation, the Veteran filed a claim for hearing loss, but he neglected to file any claim for ringing or tinnitus at that time. Moreover, no ringing was noted at the Veteran's VA audiological examination in March 1979. Following that examination, the Veteran did not seek any ear treatment for nearly three decades, during which time he worked for the highway department operating heavy equipment and presumably being exposed to loud noise. Yet, even when the Veteran eventually sought treatment in 2003, there was no report of any ringing or tinnitus. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). This is also relevant as this treatment was sought prior to him ever filing any claim for tinnitus, whereas his current statements alleging in-service onset were made in the context of seeking monetary benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). Following his filing for service connection for tinnitus in 2008, the Veteran did submit private treatment records from 2012 showing that he was diagnosed with tinnitus, but the doctor actually noted that the Veteran had only been experiencing symptoms for eight years. Taking this onset as accurate would place the onset of the Veteran's tinnitus nearly three decades after service, and after more than 25 years with the highway department. While none of these factors alone is dispositive, taken in their totality, the evidence is highly persuasive that the Veteran's tinnitus did not actually begin in service and continue to the present day. A medical opinion of record was obtained in an effort to assist the Veteran in substantiating his claim, but the examiner concluded in 2011 that it was less likely than not that the Veteran's tinnitus either began during or was otherwise caused by the Veteran's military service or by any service connected disability. This opinion has not been challenged by any other opinion. As such, the weight of the evidence is squarely against a finding that the Veteran's tinnitus either began during or was otherwise caused by his military service. Therefore, the criteria for service connection have not been met, and the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in September 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established; and informed him both what "new" and "material" meant in the context of his hearing disability claim, and why his claim had previously been denied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private treatment records and VA treatment records have been obtained, as have service treatment records. To this end it is noted that in a January 2012 private treatment record, the doctor suggested that additional testing should be conducted. However, there is no indication that such testing, while recommended, ever was conducted; and the Veteran has not informed the Board that he underwent additional testing either at his Board hearing two weeks after the January 2012 treatment, or in the year since his hearing. As such, the Board is not on notice of any outstanding treatment records which must be obtained prior to rendering a decision in this appeal. The Board wishes to emphasize that, "[t]he duty to assist in the development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has been informed of the need to provide, or at the very least inform, VA of relevant treatment records. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. There has been no assertion that the examination was in any way inadequate. With respect to the aforementioned January 2011 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the increased rating claim. However, specific questions were directed at identifying whether the Veteran had a hearing loss disability for VA purposes, and at determining the onset and etiology of his tinnitus. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER New and material evidence has not been presented to reopen a claim of entitlement to service connection for hearing loss in the right ear, and the Veteran's claim is not reopened. Service connection for tinnitus is denied. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs