Citation Nr: 1304677	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  10-39 857	)	DATE 
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel


INTRODUCTION

The Veteran served on active duty from August 1966 to August 1968.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

The Veteran's original claim of entitlement to service connection for hearing loss was denied by the RO in June 2006.  He subsequently attempted to reopen the claim in April 2008; however, his claim was denied in a July 2008 rating decision.  The Veteran received notice of the decision and of his appellate rights.  He did not file a notice of disagreement (NOD) and that denial therefore became final.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  He again filed an application to reopen his claim in November 2009 and this appeal follows.  Although the RO reopened the Veteran's claim in the March 2010 rating decision, the question of whether new and material evidence has been received is one that must be addressed by the Board notwithstanding a decision favorable to the appellant that may have been rendered by the RO.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim).  As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claim.

In November 2011, the Veteran presented testimony during a videoconference hearing.  A transcript of the hearing has been associated with the Veteran's VA claims file.  Following the November 2011 hearing, the Veteran submitted additional evidence directly to the Board.  At that time, the Veteran also submitted a written waiver of RO consideration of this evidence.  See 38 C.F.R. §§ 19.9, 20.1304(c) (2012).


FINDINGS OF FACT

1.  By a July 2008 decision, the RO declined to reopen a claim of entitlement to service connection for hearing loss.

2.  The evidence submitted since the July 2008 RO decision is neither cumulative nor redundant of the record at the time of the prior final denial, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hearing loss.

3.  The Veteran does not have hearing loss that is attributable to his military service.


CONCLUSION OF LAW

The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA); Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & West Supp. 2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a) (West 2002 & West Supp. 2012); 38 C.F.R. § 3.159(b) (2012).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.  See 73 Fed. Reg. 23353-56 (April 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 claimant to provide any evidence in the claimant's possession that pertains to the claim.  See 38 C.F.R. § 3.159(b)(1).)

With respect to the hearing loss claim, a pre-decisional notice letter in January 2010 complied with VA's duty to notify the Veteran with regard to this issue.  In particular, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board additionally finds VA has satisfied its duty to assist the Veteran in the development of his hearing loss claim.  Relevant in-service and post-service treatment reports are of record.  Moreover, the Board notes that the Veteran was afforded a VA examination in February 2010 with an addendum VA medical opinion in February 2011.  The Board recognizes the contentions of the Veteran's representative that the February 2011 VA medical opinion is inadequate because it was not provided by a state-licensed audiologist.  See, e.g., the November 2011 Board hearing transcript, pg. 12.  To this end, the Board has reviewed 38 C.F.R. § 4.85(a) and finds that the VA medical opinion was not obtained in violation of the regulation.  Specifically, 38 C.F.R. § 4.85(a) requires that "[a]n examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test."  The Board does not dispute that the February 2011 VA addendum opinion was provided by a general medical practitioner.  Nevertheless, the record demonstrates that examination for hearing impairment for VA purposes was conducted in February 2010 and was in fact done by a state-licensed audiologist as is required by 38 C.F.R. § 4.85(a).  The February 2011 examiner only provided a medical nexus opinion and did not conduct audiometric testing.  Accordingly, the Board finds that the February 2011 VA addendum opinion is not inadequate under the applicable regulation.

Moreover, the February 2010 examination report and February 2011 addendum opinion contain sufficient evidence by which to decide the hearing loss claim.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).  The Board therefore concludes that the VA examination report and addendum opinion are adequate.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  Thus, given the standard of the regulation, the Board finds that VA does not have a duty to assist that was unmet.

II.  Claim to Reopen

The Veteran original claim of entitlement to service connection for hearing loss was denied in a June 2006 rating decision.  He did not pursue an appeal of that denial and the June 2006 RO decision therefore became final.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.129, 19.192.  Thereafter, the Veteran filed an application to reopen his hearing loss claim in April 2008.  His application was denied by the RO in a July 2008 decision.  The Veteran did not disagree with the July 2008 decision or file additional evidence within the appeal period and the decision became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2012).

As a result of the finality of the July 2008 decision, a claim of service connection for hearing loss may now be considered on the merits only if new and material evidence has been received.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996).

As indicated above, the Board 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 (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.  Barnett, supra.  Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted.  Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996).

"New" evidence is evidence not previously submitted to agency decision makers.  "Material" evidence is 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 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).  In determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

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.  Id.

The relevant evidence of record at the time of the July 2008 RO decision consisted of service treatment records (STRs), the Veteran's DD-214, a VA examination report dated May 2006, and the Veteran's statements.  The Veteran's DD-214 documented his service in the Republic of Vietnam and indicated that his military occupational specialty (MOS) was basic field artillery.  STRs were absent any complaints of or treatment for hearing loss and the Veteran's July 1968 service separation examination documented normal hearing.

Of record was a May 2006 VA audiological examination which indicated the following:





HERTZ



500
1000
2000
3000
4000
Average
RIGHT
50
70
    75
70
70
71
LEFT
40
45
50
55
55
51

The May 2006 VA examiner also noted that the speech recognition scores were 46 percent in the right ear and 100 percent in the left ear.  Given these results, it may be concluded that the Veteran has current hearing impairment in both ears as defined by VA.  See 38 C.F.R. § 3.385 (2012).

The May 2006 VA examiner also provided an opinion concerning nexus to service.  Specifically, the examiner concluded that "[i]t is less than likely that...hearing loss [is] due to military noise exposure.  Hearing was normal at separation examination.  Veteran also did not report having difficulty with hearing...until about eight years ago, which would have been approximately twenty years after active duty."

Accordingly, at the time of the last final denial of the Veteran's service connection claim, there was insufficient evidence of medical nexus between his diagnosed hearing loss and his military service.  Thus, the RO denied the Veteran's claim of entitlement to service connection for hearing loss.  As indicated above, the Veteran did not appeal the RO's July 2008 decision, and the denial consequently became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).

Relevant evidence received since the July 2008 decision consists of VA treatment records, a private audiology evaluation dated in October 2009, a newspaper article, a grand rounds presentation by UTMB Department of Otolaryngology, medical treatise excerpts, photographs of artillery in Vietnam, a VA examination report dated in February 2010, a VA medical addendum opinion dated in February 2011, and statements of the Veteran and his representative.

After a review of the entire record, and for the reasons expressed immediately below, the Board finds that additional evidence has been submitted that is sufficient to reopen the Veteran's claim.

A private audiology evaluation dated in October 2009 indicated that the Veteran had a diagnosis of mild low frequency hearing loss that slopes to moderate loss in the mid-frequencies for the left ear and a severe hearing loss in the mid-frequencies for the right ear.  The thresholds then converged again [for] a severe to profound hearing loss in the high frequencies."  The private audiologist then opined that the Veteran "has a significant history of noise exposure and I believe that it is very likely that some part of his hearing loss was caused by the noise exposure when he was serving in the Army.  The significant noise exposure from artillery is likely the cause of some of his hearing loss."

In addition, the Veteran submitted a newspaper article, the grand rounds presentation, and medical treatise excerpts that refer to a delayed onset of hearing loss following significant noise exposure, including military noise.  He also submitted photographs of the artillery he fired during his Vietnam service.

The Veteran additionally submitted multiple statements in which he described his in-service noise exposure from artillery, small arms, and mortar fire.  Further, in his November 2009 claim to reopen, the Veteran indicated that while he was in Vietnam "[t]he weapon [he fired] was so loud that when fired you could not hear the man next to you.  One night a 2x4 blew off the roof from the force of the blast and hit him in the head.  [The] Veteran was also exposed to mortar fire, [and] one time [a] round came in and exploded and threw the Veteran off his gun, the blast was so strong that he blacked out."

The Board further notes that the February 2010 VA examination report with February 2011 VA addendum opinion provide medical evidence that the Veteran's hearing loss is not due to his conceded in-service acoustic trauma.  Although this evidence is new, it is unfavorable to the hearing loss claim and thus does not help the Veteran.  See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material).

Nevertheless, pursuant to Shade, supra, evidence is new if it has not been previously submitted to agency decision makers and 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.  The October 2009 private audiology evaluation, which suggests a medical nexus between the Veteran's currently diagnosed bilateral hearing loss and his military service, as well as his statements concerning the continuity of symptomatology, were not of record at the time of the last final denial.  As such, this evidence is new.  It is also "material" because it relates to unestablished facts necessary to substantiate the claim-namely, the existence of current diagnoses and medical nexus.  Although cumulative of what was of record in 2008, the Board finds that the newly submitted evidence meets the requirements of Shade for reopening.

As a result, the Board finds that the newly added medical evidence, which is presumed credible, see Justus, supra, constitutes new and material evidence.  Accordingly, the claim of service connection for hearing loss is reopened with the submission of new and material evidence.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

III.  Merits of Service Connection Claim

In Bernard v. Brown, 4 Vet. App. 384 (1993), the Court held that when the Board addresses a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities.

The Veteran's presentation has not been limited to the matter of new and material evidence.  Moreover, as has been noted elsewhere in this decision, in March 2010 the RO reopened the claim and denied it on the merits.   Further, the Veteran presented testimony as to all aspects of his claim at a Board hearing in November 2011.  Thus, the Board finds that it may proceed with an analysis on the merits.

As indicated above, VA has obtained the Veteran's STRs, VA treatment records, a private audiology evaluation, as well as a February 2010 VA examination with February 2011 addendum opinion.  These records have been associated with the Veteran's claims file.

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  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 service, 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).

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted on a presumptive basis for certain chronic disabilities, including sensorineural hearing loss, when manifested to a compensable degree within the initial post-service year.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2011).

As noted above, service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  For the purposes of applying the law administered by 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 (2012).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

The Veteran claims that he developed hearing loss that began during his military service.  Specifically, he asserts that he sustained acoustic trauma as a result of artillery, small arms, and mortar fire during his service in the Republic of Vietnam.  See November 2011 Board hearing transcript, pgs. 2-6.  For the reasons set forth below, the Board concludes that service connection is not warranted for hearing loss.

In this case, it is undisputed that the Veteran has been found to have hearing loss for VA compensation purposes in both ears.  See the February 2010 VA examination report.

As described above, the Veteran served on active duty from August 1966 to August 1968 and service in the Republic of Vietnam is demonstrated by the record.  The Veteran's MOS was basic field artillery, which is consistent with his description of in-service exposure to artillery, small arms, and mortar fire.  Accordingly, acoustic trauma as contended by the Veteran is conceded based on the circumstances of his military service.

There is no competent medical evidence that a sensorineural hearing loss manifested within one year of the Veteran's discharge from active service.  38 C.F.R. § 3.307, 3.309.  Nevertheless, in support of his contentions of service connection, the Veteran submitted a private audiology evaluation dated in October 2009 wherein the examiner said the following:  "[The Veteran] has a significant history of noise exposure and I believe that it is very likely that some part of his hearing loss was caused by the noise exposure when he was serving in the Army.  The significant noise exposure from artillery is likely the cause of some of his hearing loss."  Critically, the October 2009 private audiologist's opinion provides little or no rationale for the conclusion rendered.  See Nieves-Rodriguez, supra; Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence).  Moreover, the October 2009 opinion failed to address the impact, if any, of the Veteran's post-service occupational and recreational noise exposure on his subsequent diagnosis of hearing loss.

In contrast, a February 2010 VA examiner has explained that the Veteran's STRs "documented normal hearing sensitivity at entrance and separation from service.  A significant shift in hearing acuity was not noted when entrance and separation evaluations were compared.  Although military noise exposure is conceded, it is less than likely that hearing loss is related [to] military noise exposure as hearing was documented to be normal at entrance and separation from service and a significant shift in hearing acuity was not noted during the Veteran's time in service."

As indicated above, an addendum medical opinion was obtained in February 2011 in order to provide a more thorough discussion of medical nexus, including the Veteran's contentions of continuity of symptomatology.  The examiner indicated that "[t]he evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following exposure, with the length of recovery, whether partial or complete, related to the level, duration, and type of noise exposure.  Most recovery to stable hearing thresholds occurs within 30 days.  (Institute of Medicine)."  The examiner continued, "[c]urrent science indicates that the 'understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-inducted hearing loss following an earlier noise exposure is extremely unlikely.' (Institute of Medicine)."  The examiner further explained, "[t]he basic conclusion from review of the research in this area is that individuals with previous noise-induced hearing loss are neither more nor less susceptible to subsequent noise-induced hearing loss than individuals without such pre-existing hearing loss (Institute of Medicine)."  The examiner therefore concluded, "[w]ith normal hearing upon discharge, there is no evidence of hearing damage due to military noise exposure.  Any worsening of hearing from the time of discharge to current is due to noise exposure between the times of discharge to current.  Therefore...[c]urrent hearing loss found on audiometric testing is NOT due to or aggravated by military noise exposure."

The February 2011 VA addendum opinion appears to have been based upon a review of the record and analysis of the Veteran's entire history, including his in-service experience as recounted by the Veteran himself as well as the newspaper article, grand rounds presentation, and medical treatise excerpts submitted by the Veteran.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  Moreover, the February 2011 VA addendum opinion appears to be consistent with the Veteran's history, which documents occupational noise exposure from construction, carpentry, and farming work as well as recreational noise exposure from hunting following the Veteran's active duty discharge.  See the February 2010 and May 2006 VA audiology examination reports.

The Board is mindful of the finding in Hensley v. Brown, 5 Vet. App. 155 (1993), in which the Court stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.  However, as noted by the VA examiner, there is no clinical evidence of hearing loss for many years after the Veteran's August 1968 military discharge.

The Board has carefully considered the Veteran's assertions that he has had hearing loss since his active service.  Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).   However, the Board finds that the reported history of continued symptoms since active service is inconsistent with the clinical evidence of record, which shows an absence of complaint of or treatment for hearing loss for decades after the Veteran's military service.  More importantly, the February 2011 VA examiner's opinion, which was based in part on the Veteran's history, is more persuasive as to whether disability is attributable to military service than the Veteran's account of when it began.

The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise.  Considering the overall evidence, including the post-service medical evidence, the VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value.

In conclusion, the preponderance of the evidence is against the claim that current hearing loss is related to active military service.  Thus, the benefit-of-the-doubt rule is not helpful to the Veteran.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to service connection for hearing loss is denied.



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs