Citation Nr: 1306351	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  10-31 233	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for a bilateral hearing loss disability.

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant and W.G.


ATTORNEY FOR THE BOARD

J. Juliano, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1950 to August 1953, followed by service in the Naval Reserves from August 1953 to December 1989.  He is the recipient of, among other decorations, a Purple Heart medal.

These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2009 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Waco, Texas.

In December 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the RO in Waco, Texas.  A transcript of the proceeding has been associated with the claims file.

With regard to the Veteran's application to reopen his claim of entitlement to service connection for a bilateral hearing loss disability, despite any determination reached by the RO to reopen a claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996).  As will be discussed in detail below, the Board has determined that new and material evidence has been received, and, therefore, the claim is reopened.

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.  An unappealed March 2006 Board decision denied entitlement to service connection for a bilateral hearing loss disability; this decision became final.

2.  Evidence received since the March 2006 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim for service connection for a bilateral hearing loss disability.

3.  The competent and credible evidence of record is in relative equipoise as to whether the Veteran's bilateral hearing loss disability is etiologically related to a disease, injury, or event in service.

4.  Tinnitus was not shown in service or for many years post-service, and has not been shown to be etiologically related to a disease, injury, or event of service origin.


CONCLUSIONS OF LAW

1.  New and material evidence sufficient to reopen the Veteran's claim for service connection for a bilateral hearing loss disability has been received.  See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

2.  A bilateral hearing loss disability was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.304, 3.385 (2012).

3.  Tinnitus was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.304 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

With regard to the Veteran's application to reopen his claim of entitlement to service connection for a bilateral hearing loss, the Veteran's claim has been reopened and granted, as explained in further detail below.  As such, the Board finds that any error under the VCAA with regard to this claim is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

With respect to the Veteran's claim for service connection for tinnitus, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).

The Board finds that a VCAA letter dated in July 2009 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012).  The notice letter informed the Veteran of what the evidence must show to substantiate his claim, described which evidence the Veteran should submit in support of his claim, and which evidence VA would obtain.  The notice also described how VA assigns disability ratings and effective dates.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

The Board also concludes that VA's duty to assist has been satisfied.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  All of the Veteran's service treatment records, VA treatment records, and private treatment records have been associated with the claims file.  The Veteran has not identified any outstanding treatment records for VA to obtain.  The Board finds that the record contains sufficient evidence to make a decision on the claim.

VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of 
(1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  See 38 C.F.R. § 3.159(c)(4) (2012);  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Veteran was provided with a VA examination relating to his claim in August 2012.  The August 2012 VA examination report reflects that the examiner had an opportunity to review the entire claims file, including all of the Veteran's service, VA, and private treatment records, and to personally elicit a history from the Veteran and examine him.  The examiner also provided a clear rationale for his conclusions.  Based thereon, the Board finds this VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

A.  Application to Reopen

The primary issue for resolution before the Board is whether new and material evidence has been received sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for a bilateral hearing loss disability.  After a review of the evidence of record and as discussed in greater detail below, the Board finds that new and material evidence has been received, and, therefore, the claim is reopened.

New evidence means evidence not previously submitted to agency decision makers.  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 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) (2012).

According to the United States Court of Appeals for Veterans Claims (Court), in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis.  See Evans v. Brown, 9 Vet. App. 273 (1996).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510 (1992).

By way of background, an April 2002 rating decision denied the Veteran's claim for service connection for a bilateral hearing loss disability based upon an August 2001 VA audiological opined that it was unlikely that the Veteran's hearing loss was caused by his regular active service (noting that his hearing was normal at the time of his separation from his regular active service in 1953).  The Veteran appealed.  

In February 2005, the Board remanded the Veteran's claim so that, among other things, a new VA audiological examination could be obtained to address whether the Veteran had bilateral hearing loss that was related not only to his regular active service ending in 1953 but also his subsequent periods of active duty for training in the Naval Reserves through 1989.  A September 2005 VA audiological examination was performed, and the examiner opined that although the Veteran had a history of noise exposure in service more so than post-service, he was unable to determine whether the Veteran's hearing loss occurred during any period of active service in the Navy or Naval Reserves.  The examiner further opined, however, that it is less likely as not that the Veteran's hearing loss was related to his service because it was compatible with his age.  A March 2006 Board decision denied the Veteran's claim.  The Veteran did not appeal, and the Board decision became final.

In July 2009, the Veteran filed an application to reopen his claim.  Since the final March 2006 Board decision, evidence associated with the claims file includes, but is not limited to, a new August 2012 VA audiological examination report.

Because new evidence received since the final March 2006 Board decision includes a new August 2012 VA audiological examination report, the Board finds that new and material evidence has been received.  See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (overruling Colvin) (noting that it is not required for new evidence to warrant a change in the outcome of a claim in order to constitute material evidence, but rather, materiality relates to the importance of review of a complete record).  Therefore, the Veteran's claim is reopened.  

B.  Hearing Loss

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002).  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) (2012).  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) (2012).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for organic diseases of the nervous system, such as sensorineural hearing loss, may additionally be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112(a) (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012).

The Board notes, however, that the presumptive service connection provisions of 38 C.F.R. § 3.307 (e.g., relating to chronic diseases such as organic diseases of the nervous system) do not apply to active duty for training or inactive duty for training.  38 U.S.C.A. §§ 1112, 1131, 1132 (West 2002).

With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purpose of service connection.  38 C.F.R. § 3.385 (2012).  "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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."  See id.

The Veteran served on active duty in the Navy from December 1950 to August 1953, followed by several periods of active duty for training in the Naval Reserves until December 1989.  He claims that he has bilateral hearing loss due to acoustic trauma from exposure to gunfire during his regular active service as a gunners mate aboard a Navy destroyer (including combat service in Korea), as well as his later periods of active duty for training as a gunner's mate or chief gunner's mate.  

As an initial matter, the Board acknowledges that the Veteran is the recipient of the Purple Heart medal apparently relating to a shrapnel wound he incurred in April 1953 from incoming enemy mortars while serving aboard the USS James E. Keyes in Korea.  See Service Treatment Records, April 1953.  The Veteran has described being blown several feet in the blast.  See Statement, July 1956.  The Board also acknowledges that the Veteran's Navy reservist records reflect that he served several annual periods of active duty for training as a gunner's mate or chief gunner's mate from 1959 to 1988.  In light of the above, the Board concedes acoustic trauma in this case during the Veteran's period of regular active service as well as during his annual active duty for training in the Navy Reserves until 1989.  See also 38 U.S.C.A. § 1154(b) (West 2002).

The Veteran's August 1953 separation examination report reflects that his hearing acuity was 15/15 feet for a whispered voice (i.e., normal hearing).  

Subsequently, several of the Veteran's Navy reservist annual examination reports dated through January 1966 likewise reflect that his hearing acuity was 15/15 feet for a whispered voice.

The first audiogram in the Veteran's service treatment records is dated in November 1968, which reflects thresholds as follows:



Hertz (decibels)

500
1000
2000
3000
4000
6000
RIGHT
-5
0
-10
30
35
15
LEFT
5
-5
0
15
20
35

His January 1976 annual examination report (and November 1977) reflects pure tone thresholds as follows:



Hertz (decibels)

500
1000
2000
3000
4000
6000
RIGHT
10
10
10
45
45
45
LEFT
10
10
10
30
30
30

His October 1985 annual examination report reflects pure tone thresholds as follows:



Hertz (decibels)

500
1000
2000
3000
4000
6000
RIGHT
5
5
5
50
50
20
LEFT
5
5
5
15
30
25

On his October 1985 annual report of medical history, the Veteran checked the box indicating  "I don't know" if he had hearing loss.  See also October 1986, October 1987, and December 1988.

The Veteran's December 1988 annual examination report reflects pure tone thresholds as follows:



Hertz (decibels)

500
1000
2000
3000
4000
6000
RIGHT
20
10
0
55
60
35
LEFT
5
5
10
20
35
25

A diagnosis of high frequency hearing loss AD (right ear) was recorded.

Meanwhile, in a September 1984 letter, Dr. L.C. wrote that a review of his medical records revealed that in November 1980 (when the Veteran was 51 years of age), he was diagnosed with bilateral high frequency hearing loss due to a history of noise exposure without hearing protection.  Dr. L.C. added that the hearing loss was a permanent problem.

The Board notes that from around 1964 to 1988, the Veteran's service reports of medical history reflect that he was employed as a letter carrier for the U.S. Postal Service.  Previously, he reported that he worked as a shop hand and an auto partsman.  See Reports of Medical History, August 1958 and August 1962.

As noted above, the Veteran retired from the Navy Reserves in 1989.  

The Veteran was provided with VA audiological examinations in August 2001, September 2005, and August 2012.

The August 2001 VA audiological examination report reflects that pure tone thresholds were as follows:



Hertz (decibels)

1000
2000
3000
4000
Avg.
RIGHT
15
5
65
65
38
LEFT
5
10
30
50
24

Speech discrimination scores using Maryland CNC word lists were 100 percent bilaterally.  The VA examiner recorded a diagnosis of bilateral predominantly high frequency sensorineural hearing loss, and opined that it is unlikely that it is related to the Veteran's regular period of active service because the Veteran's hearing was normal at that time.  The examiner failed to address, however, the Veteran's noise exposure during his reservist service between 1953 and 1989 as a gunner's mate.

A September 2005 VA examination report reflects the Veteran's history of serving as a gunners mate during his regular active service, his subsequent service in the reserves working with guns until 1989 (again as a gunners mate), and his civilian employment as an auto shop parts manager until 1962 followed by his employment as a postal carrier for the U.S. Postal Service until his retirement in 1990 or 1991.  The Veteran reported progressive loss of hearing for several years but that he was not certain of the exact date of onset.  He also reported that he began using hearing protection at some point (apparently in the reserves) but likewise could not recall exactly when.  The examiner noted that the Veteran's hearing was normal at his separation from his period of regular active service in 1953, and that there was a significant decline in the Veteran's thresholds since the mid-1980s.  Pure tone thresholds were as follows:



Hertz (decibels)

500
1000
2000
3000
4000
Avg.
RIGHT
15
20
10
65
70
41
LEFT
10
5
10
30
50
25

The examiner recorded diagnoses of moderate-to-moderately severe sensorineural hearing loss in the Veteran's right ear, and mild-to-moderate sensorineural hearing loss in the left ear.  The examiner opined that although the Veteran had a history of noise exposure in service, he was unable to determine whether the Veteran's hearing loss occurred during any period of active service in the Navy or Naval Reserves.  The examiner further opined, however, that it is less likely as not that the Veteran's hearing loss was related to his service because it was compatible with his age.

The Veteran was provided with another VA audiological examination in August 2012.  The examiner noted that the Veteran's separation examination in 1953 from his regular period of active service showed normal hearing, and that his subsequent reservist audiograms showed bilateral high frequency hearing loss after the 1970s.  Pure tone thresholds were as follows:



Hertz (decibels)

500
1000
2000
3000
4000
6000
Avg.
RIGHT
40
30
35
70
75
65
52
LEFT
10
10
25
45
70
55
38

The examiner recorded a diagnosis of bilateral sensorineural hearing loss, but did not provide any etiology opinion.

As noted above,  "impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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).  In this case, as shown above, the Veteran has met the criteria for a hearing loss disability since January 1976, as his auditory thresholds exceeded 26 decibels in at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz at that time and again per the November 1977 annual examination report.  Also, as shown above, the Veteran was diagnosed with right ear high frequency hearing loss in December 1988 around the time of his retirement from the Navy Reserves.  While the Board acknowledges that the October 1985 and December 1988 thresholds in his left ear did not meet the criteria at that time, significant threshold shifts were nevertheless present.  Also, as discussed above, the Board has conceded that the Veteran experienced acoustic trauma in service, including during his annual active duty for training between 1959 and 1988 as a gunners mate.  The Board notes that no significant occupational (civilian) or recreational noise exposure is shown in any of the evidence of record.  The Veteran mostly worked as a mail carrier for the U.S. Postal Service during his more than 30 years as a gunners mate in the reserves, which occupation is not indicative of any occupational noise exposure.  Also, the Board finds it significant that beginning in October 1985, on his annual report of medical history, the Veteran checked the box indicating  "I don't know" if he had hearing loss.  See also October 1986, October 1987, and December 1988.  This is concomitant with the timing of the "significant decline" in the Veteran's thresholds since the mid-1980s per the September 2005 VA examiner.  

In light of the evidence of a bilateral hearing loss disability since the Veteran's annual reservist examinations in 1976 and 1977, the fact that acoustic trauma has been conceded with regard to the Veteran's regular service from 1950 to 1953 as a gunners mate followed by his reservist service as a gunners mate for over 30 years until 1989, and the lack of evidence of any significant civilian occupational noise exposure or recreational noise exposure, in this particular case, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran's bilateral hearing loss had its onset during a period of the Veteran's active duty for training.  Therefore, the Board will grant the Veteran's claim.

The Board acknowledges that none of the above discussed VA examiners have attributed the Veteran's hearing loss to his service.  In that regard, however, the Board notes again that the August 2001 VA examiner failed to consider any noise exposure from the Veteran's reservist service of over 30 years, the September 2005 VA examiner attributed the Veteran's hearing loss to his age despite the fact that the Veteran has met the criteria for a hearing loss disability for 38 C.F.R. § 3.385 purposes since he was only about 47 years old (which reasoning the Board finds to be not particularly persuasive), and the August 2012 VA examiner never addressed the etiology of the Veteran's hearing loss disability.  In short, given these inadequacies in these three VA audiological examinations, the Board finds that their probative value is not enough to bring the evidence out of relative equipoise.  The Board adds that given the fact that the Veteran has submitted to three VA examinations relating to his claimed hearing loss, it appears unlikely that a remand for further examination or an opinion would be productive, and may only serve to delay a final adjudication of the matter.

Therefore, in light of the above, and having resolved doubt in favor of the Veteran, the Board concludes that service connection for bilateral hearing loss is warranted.  See 38 U.S.C.A. § 5107(b).

C.  Tinnitus

The Veteran also claims that he has tinnitus that is related to acoustic trauma from his regular active service from 1950 to 1953 and his reservist service (all as a gunners mate) until 1989.

In that regard, the Board notes again that acoustic trauma has been conceded with regard to the Veteran's regular active service as a gunners mate (during which service he was wounded by enemy mortar for which he earned a Purple Heart medal) as well as his later service as a gunners mate in the Navy Reserves until 1989.

The Board notes that the Veteran's service treatment records dated through 1988 are silent as to any reports of tinnitus.  

Post-service, no tinnitus was noted in the August 2001 VA audiological examination report, and the September 2005 VA examination report reflects that the Veteran denied tinnitus.

The first evidence of tinnitus in the claims file are VA treatment records dated from May 2009 to July 2009 that reflect the Veteran's reported history of noise exposure in service and that he complained of tinnitus.  A diagnosis of tinnitus was recorded.  There is no etiological opinion, however, in any of these records.  The Board also acknowledges additional VA treatment records in evidence dated through August 2012, albeit they do not include any opinion as to the etiology of the Veteran's tinnitus.

The Veteran was provided with a VA examination relating to his claim in August 2012.  The VA examiner noted that no complaints of tinnitus were shown in any of the Veteran's service treatment records, that he was unable to provide the date of onset of his tinnitus, and that the September 2005 VA examination report reflects that the Veteran denied experiencing tinnitus.  Based thereon, the examiner opined that it is less likely as not that the Veteran's tinnitus was related to his service.

The Board also notes that despite being asked at least three times by his representative if he first began to experience tinnitus symptoms after he was injured in the blast in service in April 1953, the Veteran never testified that he has experienced tinnitus since that incident or otherwise since service.  See, e.g., Transcript at 6-9.  Rather, the Veteran testified that he could not remember the date of onset of his tinnitus.  This is consistent with the Veteran's reported history to the August 2012 VA examiner that he was not able to provide the date of onset of his tinnitus.  While the Board acknowledges that it appears that the Veteran's contention, by way of his representative, is that he has experienced tinnitus since service, the Board finds such a contention to lack credibility given the Veteran's own testimony at the Board hearing and consistent report to the August 2012 VA examiner that he cannot recall the date of onset of his tinnitus.

In light of the above, the Board finds that the opinion of the August 2012 VA examiner is the most probative evidence of record as to whether the Veteran's tinnitus is related to his regular active service or his reservist service.  The Board notes that there is no medical opinion that contradicts the opinion of the VA examiner.  Also, for the reasons explained above, the Board finds that the opinion of the VA examiner has by far more probative value than the Veteran's contention by way of his representative that he has experienced tinnitus since service.

The Board acknowledges that at the Board hearing, the Veteran opined that his tinnitus must be related to his in-service noise exposure.  In that regard, the Board notes that while the Veteran may be competent to report experiencing tinnitus and the date of onset of his tinnitus (which onset is addressed above), he is not, however, competent to etiologically link tinnitus first diagnosed in 2009 to noise exposure at least 20 years prior, which requires medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Again, the Board emphasizes that this is not a case in which the Veteran has alleged experiencing tinnitus since service, but rather, the Veteran testified at the Board hearing and reported to the August 2012 VA examiner that he could not recall the date of onset of his tinnitus.

Therefore, for the reasons explained above, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for tinnitus; the benefit of the doubt rule is not for application.  See 38 U.S.C.A. § 5107(b).

(Continued on next page.)











ORDER

As new and material evidence has been received regarding the claim of service connection for a bilateral hearing loss disability, the claim is reopened.

Service connection for a bilateral hearing loss disability is granted.

Service connection for tinnitus is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs