Citation Nr: 1310142 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-21 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for recurrent tinnitus. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for recurrent tinnitus. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from April 1965 to February 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran and his spouse have testified before the Board at a July 2011 hearing conducted via videoconference. A transcript of the hearing is of record. FINDINGS OF FACT 1. An October 2007 rating decision denied the Veteran's claims of entitlement to service connection for recurrent tinnitus and bilateral hearing loss. The Veteran was notified of his appellate rights, but did not complete an appeal of the rating decision. 2. Evidence received since the October 2007 rating decision is not cumulative of the evidence of record at the time of the previous denial as it relates to an unestablished fact necessary to substantiate the claims of service connection for recurrent tinnitus and bilateral hearing loss and raises a reasonable possibility of substantiating the Veteran's claims of service connection. 3. Resolving all reasonable doubt in favor of the Veteran, recurrent tinnitus is causally related to acoustic trauma incurred during the Veteran's active service. 4. Resolving all reasonable doubt in favor of the Veteran, bilateral hearing loss is causally related to acoustic trauma incurred during the Veteran's active service. CONCLUSIONS OF LAW 1. The October 2007 rating decision which denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and recurrent tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the October 2007 rating decision in connection with the Veteran's claim of entitlement to service connection for recurrent tinnitus is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Evidence received since the October 2007 rating decision in connection with the Veteran's claim of entitlement to service connection for bilateral hearing loss is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. Recurrent tinnitus was incurred in the Veteran's active service. 38 C.F.R. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 5. Bilateral hearing loss was incurred in the Veteran's active service. 38 C.F.R. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to both the Veteran's application to reopen and claims for service connection, since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis I. New and Material Evidence The RO previously denied the Veteran's claims of service connection for recurrent tinnitus and bilateral hearing loss in October 2007. The RO considered service treatment records, private treatment records and statements from the Veteran. In the October 2007 denial, the RO determined that service connection for recurrent tinnitus and bilateral hearing loss was not warranted because the evidence did not establish an etiological link between the Veteran's current disabilities and his active service. The Veteran was notified of this decision and of his procedural and appellate rights by letter in October 2007. He did not complete an appeal of this decision. Thus, it is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The 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). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the October 2007 rating decision includes VA audiological records, the report of an August 2009 VA examination and the Veteran's and his spouse's testimony before the Board. Significantly, the newly received evidence indicates the Veteran has reported tinnitus and bilateral hearing loss since his service in Vietnam, reports substantiated by his spouse's testimony before the Board. Further, the August 2009 VA examiner opined that the Veteran's tinnitus and hearing loss are interrelated. As noted above, the RO determined that there was no etiological link between the Veteran's current disabilities and active service at the time his previous claim was denied. The Board concludes that the additional evidence, viewed together in relation to the record as a whole, is new and material with respect to the issues of service connection for bilateral hearing loss and recurrent tinnitus. They were not previously of record at the time of the last prior denial. They are not cumulative of prior records because they provide an indication of an etiological link between the Veteran's current disabilities and his active service. The new evidence, presumed credible, is therefore relevant and probative and raises a reasonable possibility of substantiating the Veteran's claims for service connection. Consequently, the Veteran's claims of entitlement to service connection for bilateral hearing loss and recurrent tinnitus are reopened. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also 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. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a chronic disability under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are applicable to the Veteran's claim for bilateral hearing loss; these provisions are not applicable to the Veteran's tinnitus claim. See Walker, supra. Furthermore, organic diseases of the nervous system are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran asserts entitlement to service connection for recurrent tinnitus and bilateral hearing loss as directly related to his active service. Specifically, he testified at the July 2011 Board hearing that he was exposed to significant acoustic trauma from gunfire, explosions and helicopters flying overhead. He further indicated that he began to experience ringing in his ears and reduced hearing ability while serving in Vietnam. Initially, the Board observes that VA has previously verified the Veteran's participation in combat operations. See, e.g., March 2009 rating decision. As such, in-service acoustic trauma is conceded. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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. Private and VA treatment records indicate the Veteran suffers bilateral hearing loss for VA purposes. A review of the Veteran's service treatment records does not reveal complaints or a diagnosis of tinnitus or hearing loss. On induction examination in April 1965, the following was reported: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 5 (15) 0 (10) 0 (10) 0 (5) On separation examination in February 1967, the following was reported: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) 10 (20) 5 (15) 5 (10) LEFT 0 (15) 0 (10) 5 (15) 0 (10) 0 (5) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) The absence of in-service evidence of a hearing disability is not always fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In a July 2003 audiology opinion of record, the Veteran reported progressive hearing loss for the past 14 years. He reported significant employment related noise exposure and reported that he always wore hearing protection when in that environment. He reported no other noise exposure outside of his work environment with the exception of some hunting which he had done in the past. Following the examination, the examiner assessed bilateral sensorineural hearing loss and tinnitus most likely secondary to noise exposure. In a follow up visit in November 2003, the assessment, however, was progressive left sensorineural hearing loss and tinnitus of uncertain etiology; no ear pathology was seen on examination. In a July 2009 VA treatment reported, the Veteran described having hearing loss since Vietnam; tinnitus was also noted since his return from Vietnam. A history of military noise as well as occupational noise was reported. The examiner also noted that a review of the record included an intake note which identified a diagnosis of Meniere's disease, 2007, status postoperative left ear surgery. During the development of the Veteran's claim, he was provided a VA examination in August 2009. Following a review of the claims file, and audiological examination of the Veteran, the VA examiner opined that the Veteran's recurrent tinnitus and bilateral hearing loss are less likely as not related to his active service, noting normal audiometric findings at service separation and a "great deal" of civilian noise exposure following service separation. The VA examiner noted that he believed the Veteran's tinnitus was related to his hearing loss. The examiner did not, however, provide an explanation as to why the Veteran's civilian noise exposure, for which he has consistently reported wearing hearing protection, would have caused greater acoustic damage than his combat-related noise exposure, for which he wore no hearing protection. Further, the examiner did not comment on the lay evidence of record which collectively attests to the presence of hearing loss and ringing in the ears in service, immediately after discharge, and through the present. As noted above, the Veteran testified that he began to notice ringing in his ears during his service in Vietnam. He further testified that he began to experience a decreased hearing ability at the same time. His wife testified that she has known the Veteran since his time in service and noticed he had difficulty understanding her when she was speaking to him. She further testified that he needed the radio and television turned up to hear and had to use a fan or a sleeping machine because of the loud ringing in his ears. In a November 2009 statement, the Veteran's wife also stated that she noticed the Veteran's hearing loss and tinnitus about a month after he returned from Vietnam. She stated that she and the Veteran had been married for 42 years and in that time, his hearing and the ringing in his ears had worsened. The record on appeal also contains statements from the Veteran's two brothers received in December 2009, both of whom stated that when the Veteran returned from Vietnam, he complained of ringing in his ears. The record does not contain evidence of treatment for hearing loss and a diagnosis of tinnitus for many years following the Veteran's discharge from service. However, a lack of contemporaneous medical records cannot be a factor in determining the credibility of a Veteran's statement. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). With respect to bilateral hearing loss, service connection may be established upon a showing of a continuity of symptomatology. See 38 C.F.R. § 3.303(b); see also Walker, supra. The Veteran and his wife have both provided credible testimony that the Veteran's hearing ability was reduced upon his return from Vietnam. In this case, acoustic trauma has been conceded due to the Veteran's participation in combat. Further, the lay statements and testimony of record regarding continuity of decreased hearing symptomatology is both competent and credible. Moreover, the August 2009 VA examiner opined that the Veteran's tinnitus and hearing loss are related to each other. The Board finds it reasonable to interpret this opinion as relating both tinnitus and hearing loss to the same etiology. In light of the above, service connection for hearing loss is warranted in this case based upon continuity of symptomatology. 38 C.F.R. § 3.303(b). Where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Further, as to the tinnitus claim, even though the VA examiner provided a negative etiological opinion, the Board observes tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). While service connection for tinnitus may not be established based on a continuity of symptomatology as it is not a chronic disease specified under 38 C.F.R. § 3.309(a), the Veteran is competent to render a diagnosis of tinnitus. His testimony as well as the lay statements from the Veteran's brothers and spouse, absent contradictory evidence of record, is sufficient to establish an in-service diagnosis of tinnitus and to establish that the Veteran has had ringing in his ears since service and continuing through the present. The Board finds the lay evidence of record of in-service tinnitus and chronicity of the disability since then are both competent and credible. For the reasons discussed above, the Board finds the evidence is at least in equipoise regarding the in-service incurrence of the Veteran's current tinnitus. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board concludes that service connection for recurrent tinnitus is warranted. ORDER New and material evidence having been received, the claim of service connection for recurrent tinnitus is reopened, and service connection for tinnitus is granted. New and material evidence having been received, the claim of service connection for bilateral hearing loss is reopened, and service connection for bilateral hearing loss is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs