Citation Nr: 1306370 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-43 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1976 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis Missouri. A review of the Virtual VA paperless claims processing system revealed no further documents relevant to the pertinent appeal. FINDINGS OF FACT 1. Service connection for bilateral hearing loss was last denied in a November 2007 rating decision. The Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. 2. Evidence relating to bilateral hearing loss added to the record since the November 2007 decision is either cumulative or redundant of the evidence of record at the time of the November 2007 decision and does not raise a reasonable possibility of substantiating the claim. 3. Tinnitus was not manifest in service and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The November 2007 rating decision denying service connection for bilateral hearing loss is final. New and material evidence to reopen the claim for service connection for allergic rhinitis has not been received. 38 U.S.C.A. §§ 5108 , 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The RO informed the Veteran of VA's duty to assist him in the development of his claim in June 2009 that contained all of the required notice. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's available service treatment records (STRs) and private treatment records have been obtained and associated with the claims file. The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). VA provided the Veteran with a medical examination that was adequate because the examiner reviewed the claims file, took a full medical history, conducted the appropriate diagnostic testing, and provided a rationale for the ultimate medical opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. 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, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing 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 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 494-95 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 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). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-95. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis Bilateral hearing loss In August 1980, the Veteran submitted a claim for service connection for bilateral hearing loss. In a January 1981 rating decision, service connection was denied. The RO found that, while the Veteran's December 1980 VA audiological examination showed evidence of hearing loss, it was determined to either be related to pre-service noise exposure while working at an industrial plant or be congenital in nature. It was noted that the VA examiner did not have the Veteran's service treatment records available for review. The Veteran was notified of the denial in January 1981. He neither appealed the January 1980 decision nor submitted new and material evidence within the one year appeal period, and the decision became final. In September 2006, the Veteran submitted a claim to reopen his previously denied claim for service connection for bilateral hearing loss. The Veteran submitted copies of his service treatment records and current private treatment records showing the severity of his hearing loss. In September 2007 the Veteran was administered a VA audiological examination in which the claims file was not provided and the examiner was unable to provide an opinion. An addendum opinion was then conducted by a different VA examiner, in which it was found, upon review of the Veteran's medical records and objective testing, that it was less likely than not that the Veteran's hearing was a result of military noise exposure. In support, the examiner noted that the Veteran checked a box labeled "don't know" in response to the issue of hearing loss on his entrance examination, thereby calling into veracity the quality of his hearing upon entrance. The examiner further stated that the results of the Veteran's entrance audiogram were questionable and possibly the result of a standard practice of overlooking disqualifying features in order to fill quotas. Last, the examiner indicated that the type of noise exposure to which the Veteran was exposed, weapons fire in training with no hearing protection, would not have caused hearing loss because it was a low exposure and not considered an appreciable hazard. In a November 2007 rating decision, service connection was denied based upon the opinion in the September 2007 VA examination. The Veteran was notified of the denial in November 2007. He neither appealed the November 2007 decision nor submitted new and material evidence within the one year appeal period, and the decision became final. In June 2009, the Veteran submitted a claim to reopen his previously denied claim for service connection for bilateral hearing loss. In an August 2009 rating decision, service connection was denied based upon a finding that no new and material evidence had been submitted. The Veteran was notified of the denial in August 2009. He filed a notice of disagreement in June 2010, was issued a Statement of the Case (SOC) in October 2010, and perfected his appeal through the submission of a VA Form 9 in October 2010. At the time of the last final denial, the record contained service treatment records which showed an entrance examination with normal hearing, a PHULES form with a code 2 for hearing, and an exit audiogram and examination that showed hearing loss. The record also contained private treatment records from 2006 showing hearing loss as well as the September 2007 VA examination, which opined that the Veteran's hearing loss was less likely than not caused by military service. The Veteran's August 1980 and September 2006 claims for compensation were also of record. Since the last final denial in November 2007, the Veteran has submitted statements that his hearing was normal on his entrance examination, that on his discharge examination it showed hearing loss, that he had a military PHULES rating of 2 for hearing, that his hearing loss began in basic training and that he was provided no hearing protection on the firing range, and that he worked as a manager at a Quick Trip post-service and that he did not experience any loud noises as a result. The Veteran also resubmitted previously received copies of his service treatment records and 2006 private treatment records showing the severity of his hearing loss. On careful review of the record, the Board has determined that new and material evidence to reopen the claim for service connection for bilateral hearing loss has not been submitted. The Veteran's claim for service connection for bilateral hearing loss was previously denied on the basis that the Veteran's hearing loss possibly pre-existed service, either because of pre-service noise exposure or congenital factors. At the time of the last final denial, the record contained evidence of the Veteran's normal entrance examination for hearing, hearing loss shown on exit examination, and treatment for bilateral hearing loss in 2006. Aside from his lay statements, which recount facts that were already in the record prior to the last final denial in November 2007, the Veteran has not submitted any evidence that shows current treatment, complaints and/or diagnoses of bilateral hearing loss, or medical evidence discussing etiology of his claimed hearing loss. We recognize that the Veteran has expressed that he had normal hearing prior to service and that his hearing disorder began in basic training. Further, we recognize that the Veteran claims that he has had hearing loss since service. However, we note that he also stated that he did not know if he had hearing loss at the time he entered the service. While the Veteran has rendered statements regarding his belief that he currently has bilateral hearing loss, we find that such statements do not constitute new and material evidence. In this regard, while the Veteran is competent to report hearing loss symptoms, he is not competent, as there is no indication that he possesses any specialized medical training in audiology, to say whether or not he has these symptoms as a result of specific incidents in military service. The Board finds that the question of whether his hearing loss is related to military noise exposure is to be beyond the realm of his particular competence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the etiology of hearing loss falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. As the Veteran is a layperson without the appropriate medical training or expertise, he is not competent to render probative (i.e., persuasive) opinions on this medical matter. Id. In light of the foregoing, the Board concludes that new and material evidence has not been presented to reopen the claim for service connection for bilateral hearing loss. Stated differently, service connection for bilateral hearing loss was denied in the past because it was found that the Veteran's hearing loss possibly pre-existed service, either because of pre-service noise exposure or congenital factors. No material facts have changed. Tinnitus The Veteran is seeking entitlement to service connection for tinnitus, which he contends is related to noise exposure sustained in military service. The Veteran submitted statements that his hearing was normal on his entrance examination, that on his discharge examination it showed hearing loss, that he had a military PHULES rating of 2 for hearing, that his hearing loss began in basic training and that he was provided no hearing protection on the firing range, and that he worked as a manager at a Quick Trip post service and that he did not experience any loud noises as a result. The Veteran also resubmitted previously received copies of his service treatment records and 2006 private treatment records showing the severity of his hearing loss. A review of the Veteran's service treatment records shows that he had normal hearing and no noted complaints of tinnitus on his service entrance examination. The Veteran's exit examination showed that he specifically denied any complaints of tinnitus, despite showing evidence of hearing loss. The records were otherwise absent for any other discussion of tinnitus. The Veteran's 2006 private treatment records showed a negative entry for complaints of tinnitus, despite showing evidence of hearing loss. The Veteran was administered a VA examination in September 2007. At this examination the examiner noted that the Veteran stated he had intermittent tinnitus for about twenty years. The tinnitus was manifested by a ringing sound. The Veteran reported working in a flour mill prior to enlistment with no noise exposure. He reported that he was exposed to weapons fire without hearing protection in the military. The Veteran also reported driving a bus and truck, as well as working in a warehouse post-service with no noise exposure. It was noted that the Veteran had denied having tinnitus on his military exit examination. Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for tinnitus, so the appeal must be denied. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 469; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence, and statements made during treatment. Caluza, 7 Vet. App. at 498. A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr, 21 Vet. App. at 309 (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337 (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). Here, we find that the Veteran is competent to report ringing in his ears and the circumstances surrounding such. However, as explained below, we find that the more probative evidence is against the finding that he has tinnitus that is related to service. To the extent that the Veteran asserts that he has tinnitus that is related to service, the Board finds that his assertions are not credible. In this regard, we find that such are inconsistent with the other (lay and medical) evidence of record. Tinnitus is not shown in the record until his September 2007 VA examination and then June 2009 claim for compensation. The Board emphasizes the multi-year gap between discharge from active duty service (1976) and the initial reported symptoms in approximately 2007 (a 29-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Moreover, he denied related symptoms at separation, despite evidence of hearing loss. Furthermore, he denied tinnitus when seen by a private treatment provider in January 2006. To the extent that the Veteran argues that his tinnitus started in service and continued, we find against this assertion. In this regard, we note that when the Veteran filed his original claim for benefits, in August 1980, and subsequent claim to reopen in September 2006, he did not file a claim for tinnitus. The Veteran has indicated that his tinnitus dates back to service, but it seems unlikely that he would file a claim for other disabilities and not mention a continuing problem with tinnitus or related symptomatology at that time. We find it not credible that he would file a claim for other disabilities and not for ongoing tinnitus if he were experiencing continuity. The Board has weighed the Veteran's statements and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his denial of related symptoms at separation, his denial of related symptoms to his private treatment provider in 2006, his failure to include his claim in his original claim and subsequent claim to reopen for compensation, and the nearly three decade gap between when he claims he began noticing the symptoms and when he actually reported them. In summary, the preponderance of the evidence is against the grant of service connection for tinnitus. Accordingly, the claim is denied. ORDER The application to reopen the claim for service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs