Citation Nr: 1315319	
Decision Date: 05/09/13    Archive Date: 05/15/13

DOCKET NO.  11-08 995	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon


THE ISSUE

Whether new and material evidence has been received to reopen a claim of service connection for sensorineural hearing loss, and if so, whether service connection is warranted.       


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran served on active duty from September 1952 to September 1972.  He was awarded a Vietnam Service Medal with 2 Bronze Stars and a Fleet Marine Force Combat Operations Insignia and a Navy Commendation Medal with a Combat "V".   

This case initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2009 in which the RO denied service connection for hearing loss.    

The Board had previously denied the Veteran's claim of service connection for hearing loss in a July 1995 decision.  In a September 2001 rating decision, the RO determined that new and material evidence had not been received to reopen the claim for service connection for bilateral hearing loss.  In July 2008, the RO reopened the claim and denied service connection for hearing loss on the merits.  Within the one year appeal period, the Veteran submitted additional evidence in support of his claim.  In November 2009, the RO again denied the claim for service connection on the merits.  

The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  Thus, the Board will first determine whether new and material evidence has been received.  If new and material evidence has been received, the Board will reopen the claim and consider entitlement to service connection for hearing loss.  Therefore, the issue of whether new and material evidence has been received to reopen the claim of service connection for hearing loss is properly before the Board.

The Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge in March 2013.  A transcript of the hearing is associated with the Veteran's claims folder. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

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).

The issue of entitlement to service connection for tinnitus has been raised by the record.  See the March 2013 Board hearing transcript and the December 1997 private audiological evaluation report.  This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. 


FINDINGS OF FACT

1.  In a September 2001 rating decision, the RO determined that new and material evidence had not been received to reopen the claim for service connection for bilateral hearing loss.  The Veteran did not file a timely appeal. 

2.  The evidence added to the record since the September 2001 rating decision is neither cumulative in nature nor repetitive of that previously considered and relates to an unestablished fact necessary to substantiate the claim.   

3.  The Veteran engaged in combat with the enemy in active service in the Republic of Vietnam.  

4.  The Veteran was exposed to acoustic trauma during service and had chronic and continuous symptoms of hearing loss in service and since service separation.  

5.  The current sensorineural hearing loss disability was diagnosed after service separation and is shown as likely as not to be due to the Veteran's exposure to acoustic trauma during his period of active service.     


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen the claim of service connection for sensorineural hearing loss.  38 U.S.C.A. §§ 5108, 7105, (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.1103 (2012). 

2.  By extending the benefit of the doubt to the Veteran, bilateral sensorineural hearing loss is due to disease or injury that was incurred in service.  38 U.S.C.A. §§ 1110, 1154, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

1.  Duty to Notify and Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claims.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required.  


2.  Legal Criteria

Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.   Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection requires competent evidence showing, (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 

In this case, sensorineural hearing loss is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).  

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.  

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz).  Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  

For the 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 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In the case of any veteran who engaged in combat with the enemy in active service, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.  Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  38 U.S.C.A. § 1154(b); see also 38 C.F.R. § 3.304(d).

Although 38 U.S.C.A. § 1154 (b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected, it does considerably lighten the burden of a veteran who seeks benefits for an allegedly service- connected disease or injury and who alleges that the disease or injury was incurred in or aggravated by combat service.  Competent evidence of a current disability and of a nexus between service and a current disability is still required.  Wade v. West, 11 Vet. App. 302 (1998).

The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154 (b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis.  See VAOPGCPREC 12-99 (1999).

Rating actions from which an appeal is not perfected become final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  As a general rule, decisions of the Board are final if unappealed.  38 U.S.C.A. §§ 511(a), 7103, 7104(a); 38 C.F.R. § 20.1100. 

In order to reopen a claim which has been denied by a final decision, new and material evidence must be received.  38 U.S.C.A. § 5108.  New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  

For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 

The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

In addressing lay evidence and determining its probative value, if any, attention is directed to both 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").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  

That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever).

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence.  38 U.S.C.A. § 7104(a).  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the evidence must preponderate against the claim.  See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 


3.  Analysis

Reopening Analysis

The Board had previously denied the Veteran's claim of service connection for hearing loss in a July 1995 decision on the basis that there was no competent evidence of a diagnosis of sensorineural hearing loss in service or competent evidence of a medical nexus medically relating the current hearing loss to the acoustic trauma in service.  The Veteran was notified of the decision, but he did not appeal.  38 U.S.C.A. §§ 511(a), 7103, 7104(a); 38 C.F.R. § 20.1100.  

In January 2001, the Veteran applied to reopen service connection for hearing loss.  In September 2001, the RO determined that new and material evidence had not been received to reopen the claim.  The Veteran was notified of the decision, but he did not perfect a timely appeal; therefore, the September 2001 rating decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

The evidence of record at the time of the September 2001 rating decision included the Veteran's service treatment records, VA audiometric examination reports dated in July, a VA general medical examination report dated in June 1992, and private treatment records from a cardiologist.  

In order to reopen this claim, new and material evidence must be submitted.  38 U.S.C.A. § 5018; 38 C.F.R. § 3.156.  In April 2008, the Veteran filed an application to reopen service connection for hearing loss.  Reviewing the evidence in its entirety, the Board concludes there is sufficient evidentiary basis to reopen the Veteran's claim on appeal.  The newly submitted evidence includes an April 2011 medical statement from a private audiologist and the Veteran's testimony at a hearing before the Board in March 2013.  This evidence was not part of the record at the time of the September 2001 rating decision and therefore, this evidence is new.  

This evidence is material because it provides evidence of a possible nexus between the current hearing loss and service.  In the April 2011 statement, the private audiologist stated that the Veteran's significant noise exposure in service may have contributed to the current hearing loss, which is diagnosed as moderate to profound sensorineural hearing loss.  At the hearing before the Board in March 2013, the Veteran stated that he had symptoms of hearing loss in service and since service.  This evidence is material because it addresses an unestablished fact which is whether the current sensorineural hearing loss is medically related to the Veteran's acoustic trauma in service.  This new evidence specifically addresses whether there is a nexus to service and this evidence suggests that the Veteran may have incurred hearing loss during active military service.  Thus, the Board finds that this evidence is new and material.  

Thus, the Board finds the newly submitted evidence to be both new and material and the Veteran's service connection claim on appeal is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.   

Service Connection Analysis

Initially, the Board finds that the Veteran is a combat veteran and is entitled to the application of 38 U.S.C.A. § 1154 (b).  Service records show that the Veteran was awarded a Vietnam Service Medal with 2 Bronze Stars and a Fleet Marine Force Combat Operations Insignia and a Navy Commendation Medal with a Combat "V".   

Section 1154 (b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).  Rather, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Id.  

Section 1154 (b) addresses the combat veteran's ability to allege that an event occurred in service while engaging in combat.  See Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996).  That section, however, does not address the questions of either current disability or nexus to service, both of which competent medical evidence is generally required.  Id. citing Caluza v. Brown, 7 Vet. App. 498, 507 (1995). 

The Board finds that the weight of the competent and credible evidence establishes that the Veteran does have current sensorineural hearing loss of both ears as defined by 38 C.F.R. § 3.385.  The findings of the March 2011 VA audiometric examination show that the Veteran meets the requirements of 38 C.F.R. § 3.385 and the diagnosis is moderate to moderate-severe sensorineural hearing loss of the right ear and moderate sensorineural hearing loss to the left ear.  

In the present case, the Veteran reported being exposed to acoustic trauma in service, although he does not specifically allege that the noise exposure occurred in combat.  The Veteran reported that while serving with the Navy, he was exposed to noise from diesel generators and a power plant. He stated that he worked at the power plant 8 hours a day and was not provided ear protection.  He reported that he was at that duty station for 30 months.  The Veteran stated that in the 1950's, he was a smalls arms marksmanship instructor and he was exposed to noise on the small arms firing range.  The Veteran also reported that he was exposed to noise while working as a nuclear power plant operator.  He stated that the Army gave him a pair of rubber plugs for his ears when he was in this position.  The Veteran reported that he began to have problems with his hearing during service and he had hearing problems continuously since service.    

The Board notes that the Veteran is competent to describe being exposed to loud noise, such as that caused by firearms and engines or generators.  He is competent to describe observable symptoms such as decreased hearing.  A lay person is competent to testify only as to observable symptoms.  See Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  The Veteran's lay statements are found to be credible as they have been consistent over the years and are confirmed by the circumstances of his service, including his service with the Navy.  For this reason, the in-service injury of acoustic trauma to both ears is established.

Service records show that the Veteran had threshold shifts in the ears on audiometric testing during service.  On enlistment examination in July 1952, hearing testing was whispered voice and spoken voice was 15/15 in each ear.  On service audiological examination, in September 1962, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 10, 10, 5, n/a, and 0 decibels, respectively.  Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 15, 0, 15, n/a, and 30 decibels, respectively.  These result were converted to ISO (ANSI) units.  

On service audiological examination, in June 1968, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were -5, 0, -10, -10, and 5 decibels, respectively.  Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 0, 0, -5, -10, and 15 decibels, respectively.  On service audiological examination, in June 1969, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 0, 0, 0, 0, and 5 decibels, respectively.  Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 5, 0, 0, 0, and 10 decibels, respectively.  On service audiological examination, in June 1970, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 15, 10, 5, 10, and 10 decibels, respectively.  Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 15, 5, 5, 10, and 30 decibels, respectively.  On service separation audiological examination, in June 1972, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 5, 0, 0, 0, and 5 decibels, respectively.  Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 5, 0, 0, 0, and 20 decibels, respectively. 

Although the Veteran was not specifically diagnosed with hearing loss of either ear in active service, competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss.  See Hensley, 5 Vet. App. at 159. 

The Board finds that the Veteran experienced "chronic" symptoms of hearing loss during service and since service so as to warrant presumptive service connection for bilateral sensorineural hearing loss disability under the provisions of 38 C.F.R. § 3.303(b).  The Board also finds that symptoms of hearing loss have been continuous since service separation, which also is a basis for a grant of presumptive service connection under 38 C.F.R. § 3.303(b).  The Veteran reported having hearing loss that began in June 1972 in his initial application for compensation dated in March 1992.  A December 1997 private audiology record indicates that the Veteran reported having a long history of noise exposure.  The March 2011 VA examination report indicates that the Veteran reported a gradual onset of hearing loss in the late 1950's.  An April 2011 private audiology report indicates that the Veteran reported a significant history of noise exposure through his military service beginning in 1954 and while serving in Vietnam in 1967 to 1968.  The Veteran reported having limited noise exposure since retirement from service in 1972.  At the hearing before the Board in March 2013, he reported hearing loss symptoms that began in service and have continued since service.  The Veteran is competent to report observable symptoms such as decreased hearing.  See Jandreau, 492 F.3d at 1377.  The evidence demonstrates that the Veteran had chronic symptoms of hearing loss in service and since service separation.    

The Board further finds that the evidence is at least in relative equipoise on the question of whether the Veteran's current sensorineural hearing loss disability is related to exposure to acoustic trauma in service.  While the March 2011 VA examiner determined it was less likely than not that hearing loss was related to service, the credible lay evidence as to the onset of hearing loss in service and continuity of symptoms since service was not addressed and the probative value of that opinion is thus reduced.  For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for sensorineural hearing loss have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  The claim of service connection for sensorineural hearing loss is granted.   



ORDER

New and material evidence having been received, the appeal to reopen service connection for sensorineural hearing loss is granted and the claim is reopened.   

Service connection for bilateral sensorineural hearing loss is granted. 




____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs