Citation Nr: 1308253 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-37 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 3. Whether new and material evidence has been received to reopen a claim for service connection for a back disability. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, Spouse ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In August 2012, the Veteran was afforded a personal hearing before the undersigned. A transcript of the hearing is of record. Claims for service connection for bilateral hearing loss and a back disability were denied by the RO in February 1994. Although the RO apparently reopened these claims in August 2010, the Board must independently consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). The issue of service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In August 2012, prior to the promulgation of a decision in the appeal, the Veteran requested that the claim for service connection for diabetes mellitus be withdrawn. 2. In a February 1994 rating decision, the RO denied service connection for bilateral hearing loss. The Veteran did not timely appeal the decision, and it is now final. 3. Evidence received since the February 1994 rating decision is new and material; it relates to unestablished facts necessary to substantiate the claim for service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim. 4. In a February 1994 rating decision, the RO denied service connection for a back disability. The Veteran did not timely appeal the decision, and it is now final. 5. Evidence received since the February 1994 rating decision is new and material; it relates to unestablished facts necessary to substantiate the claim for service connection for a back disability and raises a reasonable possibility of substantiating the claim. 6. Bilateral hearing loss had its onset during active service. 7. A back disability had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran with regard to the issue of entitlement to service connection for diabetes mellitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for reopening the claim for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2012). 3. The criteria for reopening the claim for service connection for a back disability have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2012). 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 5. The criteria for service connection for a back disability have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn issue Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the August 2010 hearing, the Veteran stated that he wished to withdraw his claim for service connection for diabetes mellitus and, therefore, the issue of service connection for diabetes mellitus is withdrawn. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. II. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is reopening and granting the claims for service connection for bilateral hearing loss and a back disability. Any error committed with respect to either the duty to notify or the duty to assist with regard to these issues was harmless and will not be further discussed. III. New and material evidence The RO denied service connection for hearing loss and a back condition in February 1994. The RO denied the back condition finding that the inservice back pain was a temporary condition that resolved with treatment with no permanent residual disability shown at separation. Hearing loss was denied based on a lack of evidence showing audiometric findings that met the criteria for service connection for defective hearing. The Veteran did not appeal this decision, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.160(d). In February 2009, the Veteran filed a request to reopen the claim for service connection for hearing loss and a back disability. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. 'New' evidence is defined as existing evidence not previously submitted to agency decisionmakers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence received since the February 1994 rating decision includes statements from the Veteran and his wife, an August 2012 hearing, VA and private treatment records and a June 2010 VA examination. In a statement received February 2010, the Veteran stated that while serving aboard the USS Midway and during a portion of his service aboard the USS Kitty Hawk, he was not provided ear protection. The Veteran's wife stated in a letter dated January 2010, that she knew the Veteran since high school and reported seeing him in November 1965 and he described serving long hours on the flight deck around planes and being hit in the back by a plane. She also stated that his back pain continued since that injury and worsened over the years. During the August 2012 hearing, the Veteran reported having noise exposure following service; however, it was not as intense as the noise he was exposed to during service. He also stated that his back pain began in service and continued following service. The Veteran's wife testified that she noticed that the Veteran had hearing problems since 1973 and back pain in the early 1970s. Private and VA treatment records, including the June 2010 VA examination, reveal that the Veteran has been diagnosed as having mild sensorineural hearing loss in both ears and degenerative arthritis and degenerative disc disease of the thoracic and lumbosacral spine. This evidence is new and material, as it was not of record at the time of the last rating decision, and it relates to material elements of the claims. The evidence relates to the Veteran's contentions that his bilateral hearing loss and back disability were incurred in service and that he has suffered from symptoms of these conditions since military service. Reopening the claims is warranted. 38 U.S.C.A. § 5108. IV. Service connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted based on continuity of symptomatology, creating a presumption of service connection for chronic diseases manifesting during service and then again at any later date. This is available only for chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed.Cir. Feb 21, 2013). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hearing loss Impaired hearing will be considered to be a disability for VA compensation purposes only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155 (1993). Post-service medical treatment records show that the Veteran had been diagnosed as having bilateral hearing loss according to VA standards. See June 2010 VA examination. Therefore, the first requirement for service connection for this claim, the existence of a current disability, is met. See Hickson, 12 Vet. App. at 253. After a careful review of the evidence of record, the Board finds that service connection is warranted for bilateral hearing loss. At the outset, it is noted that the Veteran's service personnel records show that the Veteran served aboard two aircraft carriers, the USS Midway and the USS Kitty Hawk. Service personnel records also show that the USS Kitty Hawk participated in combat operations in Vietnam during the Veteran's service. The Veteran contends that he was exposed to acoustic trauma from the noise of aircraft operations aboard two ships, without ear protection. His contentions of noise exposure are credible and consistent with the circumstances of his service, as indicated in official military records. See 38 U.S.C.A. § 1154(a). In service noise exposure is conceded. Service treatment records show that the Veteran was treated for an earache in February 1967, which was due to impacted wax. On separation, the Veteran was only afforded a whisper test, which was normal. Following service, the Veteran was afforded a VA examination in June 1993, in connection with his initial claim. The Veteran was diagnosed with hearing within normal limits, but it was recommended that the Veteran's hearing be tested periodically to monitor his hearing status. Significantly, speech recognition testing resulted in 96 percent on right and 90 percent on the left. During private audiologic evaluations in April 2000 and July 2008, the Veteran was diagnosed as having sensorineural hearing loss in both ears. During a June 2010 VA examination, the Veteran reported hazardous noise exposure during service from jet engines on the fight deck. He also had occupational noise exposure following service from working in a kitchen around loud dishwashers for 27 years without ear protection. The Veteran was diagnosed with mild sensorineural hearing loss in both ears. The examiner noted the Veteran's hazardous noise exposure for two years in service and post-service noise exposure and opined that it was less likely than not that the Veteran's current hearing loss was caused by military service since he had normal hearing in June 1993. In a statement received February 2010, the Veteran stated that, while serving aboard the USS Midway and during a portion of his service aboard the USS Kitty Hawk, he was not provided ear protection. The Veteran's wife stated in a letter dated January 2010, that she knew the Veteran since high school and reported seeing him in November 1965 and he described serving long hours on the flight deck around planes. During the August 2012 hearing, the Veteran reported having noise exposure following service; however, it was not as intense as the noise he was exposed to during service on the flight decks of two aircraft carriers. The Veteran's wife testified that she noticed that the Veteran began having hearing problems in 1973. The preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Such a conclusion cannot be reached in this case. Although the VA examiner opined that the Veteran's hearing loss was not related to service, this finding is inconsistent with the Veteran's hazardous noise exposure for two years in service. Significantly, the opinion was based on the Veteran having normal hearing in June 1993; however, the Veteran did not have normal hearing during that examination as shown by the speech recognition score of 90 percent in the left ear, which demonstrates hearing loss according to 38 C.F.R. § 3.385. Therefore, the Board finds that the examiner's opinion regarding nexus is of no probative value. See Hensley, 5 Vet. App. at 159. The Veteran's wife did state during the August 2012 hearing that she noticed that the Veteran had hearing problems beginning in 1973, only six years following active duty. The Veteran testified that inservice noise was greater than the noise he was exposed to in his post-service occupation. The Veteran's wife is competent to report her observations of the Veteran having diminished hearing acuity shortly after service and her statements are found to be credible. The Veteran is also competent to compare the noise he was exposed to during service and following service and his statements are found to be credible. VA has failed to demonstrate by a preponderance of the evidence that hearing loss is not related to service and, accordingly, service connection for bilateral hearing loss is warranted. Back disability Service treatment records show that the Veteran was treated for back pain in October 1965 while serving aboard the USS Midway. Separation examination was normal concerning the spine. Post-service private treatment records show that the Veteran was treated in June 1988 for low back pain that began at work after pushing, pulling, and lifting loads. X-rays showed degenerative disc disease at L5-S1, mild spur formation at L3-4, mild degenerative osteoarthritis of the lumbar spine, spina bifida occult at L5, and aberration transverse process of L1 on the left that may represent an old healed fracture. On VA examination in June 1993, the Veteran complained of having low back pain since 1966, which occurred while he was serving on board the USS Kitty Hawk pushing planes into place. He was treated during service in sick bay and was not sure if he recovered. He reinjured his back in 1991 at work. Following a physical examination, the examiner opined that there was no objective orthopedic evidence to account for the Veteran's subjective complaints. However, x-rays performed following the examination revealed local arthritic changes at L4-5, minimal rotational deformity of the upper lumbar and lower dorsal vertebra towards the right at D[sic]12-L1, hypertrophic bridging right side of D[sic]12 and L1, and slight narrowing and sclerosis along cortical end plate and L5. Private treatment records contain x-rays dated April 2005 that reveal moderate degenerative changes of the lumbar spine, mild anterior wedging of L1, and disc space narrowing along with degenerative disc disease at L5-S1. A magnetic resonance imaging (MRI) in May 2005 revealed mild central stenosis at L3-4 with left parasagittal disc bulge, central canal at L4-5 was lower than normal limits with mild narrowing of the left foramen, and central canal at L5-S1 was lower than normal limits in size with a lateral right disc bulge. During private treatment in July 2005, the Veteran reported having low back pain since 1965 when he was hit by a plane in his back. He was diagnosed as having lumbago and his prognosis was guarded as his condition was longstanding. A January 2010 VA MRI revealed mild spondylosis and degenerative disc disease of the mid to lower thoracic spine with some degenerative bulging of the T5-6, T8-9, and T10-12. During VA treatment for his low back in April 2010, the physician stated that it was her impression that the Veteran was injured in service when he was hit by a plane in the low back according to his history. In June 2010, the Veteran was afforded a VA examination. He reported that in October 1965, he was hit by a plane in his low back while helping to move it into a hanger. He went to sick call the following day when the pain did not subside and was found to have a contusion to the back and was returned to full duty. It was noted that the Veteran did not have any treatment or problems with his back until 1988 when he injured his back at work. The Veteran was diagnosed as having degenerative disc disease and degenerative arthritis of the thoracic and lumbosacral spine. The examiner opined that the Veteran's inservice condition was acute and transitory and there was no indication of chronicity or continuity of treatment and no indication that any present back condition was associated, caused by, or the result of any low back injury noted on active duty. The examiner stated as support for his opinion that the Veteran had no further treatment for his low back injury during or following service until his injury in 1988 and found no causation linking his current back pain to the inservice injury in 1965. The Veteran's wife stated in a letter dated January 2010, that she knew the Veteran since high school and saw him in November 1965 and he described serving long hours on the flight deck around planes and being hit in the back by a plane. She also stated that his back pain continued since that injury and worsened over the years. During the August 2012 hearing, the Veteran reported that his back pain began in service and continued following service. He also stated that he did not report his back pain at separation because he was anxious to leave service. The Veteran's wife testified that she noticed that the Veteran had back pain in the early 1970s. The preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Such a conclusion cannot be made in this case. Although the VA examiner opined that the Veteran's back disability was not related to service, this finding was based on the Veteran not having any treatment or problems with his back until 1988. The record shows, however, that the Veteran did complain of having back pain since his inservice injury during VA and private treatment and the June 1993 VA examination. Furthermore, x-rays dated June 1988 showed abnormalities of the spine, including an aberration transverse process of L1 on the left that was noted as possibly representing an old healed fracture. This evidence demonstrates that the Veteran's back condition significantly preceded the June 1988 injury. Therefore, the Board finds that the examiner's opinion regarding nexus is of no probative value. See Hensley, 5 Vet. App. at 159. Service treatment records support the Veteran's claim that he was treated for back pain during service. The Veteran and his wife presented statements and testimony demonstrating that he had back pain since his inservice injury. The Veteran and his wife are competent to report their observations regarding the Veteran's continual back pain since service and their statements are found to be credible. VA has failed to demonstrate by a preponderance of the evidence that hearing loss is not related to service and, accordingly, service connection for a back disability is warranted. ORDER Service connection for diabetes mellitus is dismissed. New and material evidence having been submitted, the petition to reopen the claim for service connection for bilateral hearing loss is granted. New and material evidence having been submitted, the petition to reopen the claim for service connection for a back disability is granted. Service connection for bilateral hearing loss is granted. Service connection for a back disability is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs