Citation Nr: 1320092	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  13-00 413	)	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 received to reopen a claim of service connection for bilateral hearing loss.  

2. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel




INTRODUCTION

The Veteran had active service from September 1942 to January 1946.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  In that decision, the RO found no new and material evidence had been submitted to reopen claims for service connection for bilateral hearing loss and tinnitus.  Jurisdiction over the Veteran's claims has remained with the St. Louis, Missouri RO, which has issued all other rating decisions, statements of the case and supplemental statements of the case.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1.  In May 2007, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus; the Veteran did not appeal that determination and no new and material evidence was received within one year from its issuance.  

2.  Evidence received more than one year after notice of the May 2007 RO decision raises a reasonable possibility of substantiating the service connection claims for bilateral hearing loss and tinnitus.  

3.  The Veteran has current bilateral hearing loss as a result of in service noise exposure.  

4.  The Veteran does not have current tinnitus.  



CONCLUSIONS OF LAW

1.  The May 2007 RO decision that denied a claim for service connection for bilateral hearing loss and tinnitus is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).  

2.  New and material evidence has been received to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).  

3.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a), 3.385, 3.304 (2012).  

4.  Tinnitus was not incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307(a), 3.309(a).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) requires VA 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).  

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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

With respect to the new and material questions, the Board has decided to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus, no further notice or assistance is required to substantiate this aspect of the claims.  

Similarly, the Board is granting service connection for bilateral hearing loss.  As this represents a grant of the benefit sought on appeal, no further notice or assistance is necessary.  

For the reopened claim for service connection for tinnitus, the Veteran was sent a letter in February 2010 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.  

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, the statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

New and material evidence

A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2012).  

The claims of entitlement to service connection may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991).  New evidence means existing evidence not previously submitted to agency decision makers.  38 C.F.R. § 3.156(a) (2012).  Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  In determining whether evidence is new and material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  

In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2012).  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination.  Id. at 118.  

Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance.  Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element).  

In November 2006, the RO denied the claims for service connection for bilateral hearing loss and tinnitus because no present disability was found; information in the file showed the Veteran had refused a VA examination.  The Veteran requested an examination be rescheduled in January 2007, however, after the examination the RO denied the claims again in May 2007, because the examiner's nexus opinion was negative.  The Veteran did not file a notice of disagreement and new and material evidence was not received within one year of the notice of the decision; the May 2007 decision is final.  38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b) (2012).  

In February 2010, the Veteran filed to reopen his claim.  The RO reopened this claim, but still denied the claims for service connection.  

Prior to May 2007, the evidence in file consisted of service treatment records, the Veteran's statements, VA treatment records and a VA examination report.  

Evidence received since May 2007, includes a newer VA examination report and opinion as well as an audiogram and opinion provided by a private audiologist, dated in March2010 but received by VA in December 2012.  This opinion links current hearing loss and tinnitus to service.  

Analysis

New and material

The newly received evidence includes a competent medical opinion that for the first time links the claimed disabilities to service.  Previously, no positive nexus statement was in the file and the 2010 private audiologist letter provides such evidence.  This evidence was, of course, not previously of record and is therefore, new.  The evidence relates to the basis of the prior denial and would at least trigger VA's duty to provide an examination, as such it raises a reasonable possibility of substantiating the claims; as such the evidence is material.  Shade, 38 C.F.R. § 3.156(a).  New and material evidence sufficient to reopen the Veteran's claim has been received and the claim is reopened.  

Service connection merits

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Establishing service connection generally requires evidence of (1) a current disability; (2) lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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 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 if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a).  However, the United States Court of Appeals for the Federal Circuit has held that § 3.303(b) applies only to listed chronic diseases.  Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). 

In Walker, the Federal Circuit specifically held that § 3.303(b) did not apply to a claim based on age related hearing loss.  VA has; however, taken the position that sensorineural hearing loss, as a disease of the central nervous system, is a chronic disease subject to presumptive service connection and the continuity provisions of 38 C.F.R. § 3.303(b).  See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995.  Similar reasoning would apply to tinnitus, and lead to the conclusion that this disability is also an organic disease of the nervous system and is treated as a listed chronic disease.

The Veteran's hearing loss has been diagnosed as sensorineural and the Board finds it qualifies as a chronic disease; the continuity of symptoms must be considered for the claim for service connection for bilateral hearing loss.  

As an organic disease of the nervous system, service connection for sensorineural hearing loss may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  See, 38 U.S.C.A. § 5107(b) (West 2002).  It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent with the facts shown in every case.  38 C.F.R. § 3.102 (2012).  

In adjudicating this claim, the Board must assess the competence and credibility of the Veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Court of Appeals for Veterans Claims (Court) has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation.  See Charles v. Principi, 16 Vet. App. 370, 374-375 (2002).  Under 38 C.F.R. § 3.159(a)(2) (2013), competent lay evidence means 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 the facts or circumstances and conveys matters that can be observed and described by a lay person.  Id.  

In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits.  Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) 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, 492 F.3d at 1377.  

The Board must also assess the credibility, and probative value of the evidence of record in its whole.  Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997).  In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza, 7 Vet. App. 498, 511.  

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 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 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 (2012).  

The Veteran contended in his June 2006 claim that bilateral hearing loss and tinnitus started in 1945.  He repaired planes and did sheet metal work.  He was exposed to loud noise in the shops and hangars.  He stated he was never given any ear protection.  In his December 2012 appeal, the Veteran asserted that the VA examiners did not consider a 2010 private opinion; however, this opinion was not submitted until December 2012.  

In April 2013, the Veteran's representative stated that normal hearing at separation is not outcome determinative, citing to Hensley v. Brown, 5 Vet. App. 155 (1993) (when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service).  Also, the representative stated that the claim was in equipoise because the examiner did not consider the Veteran's assertions that he noticed some hearing loss in service which continued to the present and because of the positive private opinion.  In May 2013, the informal hearing presentation noted that the Veteran had a fungus infection of the bilateral ears at separation.  

Service treatment records show that on examination for enlistment in September 1942, no hearing loss or tinnitus was identified.  An October 1945 record showing treatment for gastroenteritis; also shows that the ears were essentially negative.  In January 1946, the Veteran underwent an examination for separation from service.  He was found to have a fungus infection of both ears.  Hearing was evaluated by both whispered and spoken voice testing; as 15/15 for both ears.  

The DD 214 shows service as an aviation machinist's mate, second class.  He had prior training in wood and mechanic's shop in high school.  His last employer was a private aircraft company.  

Post-service records show the Veteran visited VA audiology in July 2006 for impacted ear wax.  In September 2006, a VA audiology record stated the Veteran's primary care provider stated he was having difficulty communicating with the Veteran.  As the degree of hearing loss would jeopardize medical care, the Veteran was found eligible for amplification via physician approval.  The next month he had a hearing aid fitting.  

A VA examination reports show in April 2007 that a VA audiology examination showed the Veteran complained of difficultly in everyday communication.  He reported a history of military noise exposure to aircraft engine noise and machinery as an aviation machinist's mate.  Post military noise exposure to machinery as a sheet metal worker and aircraft engine mechanic was also reported.  No other otologic conditions were reported.  

The Veteran stated there was no history of tinnitus and it was not diagnosed.  

Audiogram results were as follows.  



HERTZ

500
1000
2000
3000
4000
RIGHT
40
55
70
65
65
LEFT
45
60
75
65
65

Speech recognition was 76 percent in the right ear and 82 percent in the left ear.  The diagnosis was bilateral mild to severe sensorineural hearing loss with mildly reduced word recognition scores.  

The examiner stated that bilateral hearing loss and tinnitus were less likely as not caused by or a result of acoustic trauma during service.  The examiner saw no evidence of hearing loss or tinnitus in the service treatment records.  

Normal whisper tests were present and they did not rule out hearing loss.  However, the Veteran had in-service noise exposure as well as post-service noise exposure.  The examiner stated: "He waited over 60 years to file a claim for hearing loss and now aging effects are present.  The examiner cannot be 50% or more certain the hearing loss began during military service."  

In November 2012, the Veteran attended another VA examination for bilateral hearing loss and tinnitus.  Audiogram results were as follows.  




HERTZ

500
1000
2000
3000
4000
RIGHT
50
55
65
65
65
LEFT
45
60
70
65
65

Speech recognition was 72 percent in the right ear and 76 percent in the left ear.  The diagnosis was again sensorineural hearing loss in both ears.  

The claims file was reviewed.  The examiner found that there was not at least a 50 percent probability or greater that the bilateral hearing loss was caused by or the result of military service.  The examiner explained that the Veteran's exposure to noise in the military was (sheet metal production) and recreational pursuits (some hunting and power tool use).  The examiner noted it was the Veteran's contention that he had normal hearing when he entered the military.  

Regarding his claim for service connection for tinnitus, the examiner stated he did not report recurrent tinnitus.  As a result, the examiner stated it was less likely than not a symptom associated with the Veteran's hearing loss and less likely than not caused by or a result of military noise exposure.  

In December 2012, the Veteran submitted a private audiogram and opinion letter dated March 2010.  The audiogram evidence was consistent with the past audiograms; it showed bilateral hearing loss for VA purposes and speech discrimination less than 92 percent.  Significant history was noted as "flight line in Hawaii" and "tinnitus began in the military-drove truck".  It also mentioned "sheet metal workers" and being a farmer for three to four years.  

The opinion letter stated that the Veteran stated he had a history of noise exposure in the military, where his occupation was working on the flight line as a riveter and he was exposed to hazardous noise levels.  The audiologist stated he worked for AT&T, drove a delivery truck, and farmed for three to four years post-military.  There was no other history of noise exposure.  He reported that tinnitus began during his time in the military.  "He also reported experiencing temporary threshold shifts after being on the flight line."  The audiologist noted there were no military examinations available for her to review.  It was her opinion that it was more likely than not that his bilateral hearing loss and tinnitus was related to military noise exposure and that it may have worsened as a civilian.  The opinion was based on case history, configuration of hearing loss and the onset of tinnitus.  

Analysis

Hearing Loss

A current hearing loss disability has been established based on the recent audiograms.  These audiograms show the Veteran had hearing loss for VA purposes under § 3.385.  The Veteran has provided competent and credible evidence of in-service incurrence acoustic trauma that is consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a); Shedden, 381 F.3d at 1167.  An in-service injury is also demonstrated.

The VA examiners have provided negative opinions regarding a possible link between the current hearing loss and in-service acoustic trauma; while the private audiologist provided a favorable opinion.  There are problems with all three opinions.  The first VA examiner seemed to require confirmatory evidence in the service treatment records, which is contrary to Court precedent.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  The private audiologist did not have access to the service treatment records or discuss the Veteran's post-service noise exposure.  

As the Veteran's representative points out, the documented fungal infection in-service was not addressed by any audiologist considering the claim.  Both of the VA examiners appear to provide a negative assessment of the claim at least partially because the Veteran's late filing of it, which is not necessarily be controlling.  The private audiologist did seem to find that the configuration of hearing loss supported a nexus to service.  The Board finds under the circumstances the negative VA opinions and the private audiologist's opinion are equally plausible and assigns each equal weight.  

Resolving reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is granted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

Tinnitus

As the RO has reopened and considered this claim on the merits, there is no prejudice to the Veteran in the Board doing the same.  

The Veteran has provided competent reports of tinnitus beginning in service and continuing since.  However, the Veteran has provided highly variable and inconsistent reports as to his symptoms and history.  

Both the April 2007 and November 2012 VA examination reports reflect that the Veteran denied current tinnitus and reported no pertinent history.  He reported ongoing tinnitus in other statements, including in his claims for benefits, during the course of his appeal; and to the private audiologist who provided the March 2010 opinion.  He did not report ringing in his ears on the medical history he completed at service separation, nor did he apparently complain of ringing in his ears on examination for separation, even though a fungal infection of the ears was specifically noted.

Given these inconsistencies, the Board finds the occasional recent reports of a continuity of symptomatology to lack credibility.  As the March 2010 private audiologist opinion was based on these incredible reports, the opinion is of little probative value; and there is no other competent and credible evidence of a continuity of symptomatology or of a link between tinnitus and service on another basis.  The VA examination reports were based on an accurate history, and are of greater probative value.  

The most probative evidence is against the claim.  Accordingly, the preponderance of the evidence is against the claim for service connection for tinnitus; reasonable doubt does not arise and the claim is denied.  38 U.S.C.A. § 5107(b).


ORDER

New and material evidence having been received; the claim for service connection for bilateral hearing loss is reopened.

New and material evidence having been received; the claim for service connection for tinnitus is reopened.  

Service connection for bilateral hearing loss is granted.  

Service connection for tinnitus is denied.  



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs