Citation Nr: 1324150	
Decision Date: 07/30/13    Archive Date: 08/07/13

DOCKET NO.  10-28 697	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss, and if so, entitlement to that benefit.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from July 1963 to December 1963.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. 

The July 2008 rating decision declined to reopen the Veteran's previously denied claim for service connection for bilateral hearing loss.  

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2011.  A transcript of the hearing is associated with the claims file. 

In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA.  The Board has reviewed both the paper and electronic claims files in rendering this decision.


FINDINGS OF FACT

1.  The claim of entitlement to service connection for bilateral hearing loss was denied in an unappealed, July 1992 rating decision.

2.  The evidence received since the July 1992 rating decision includes evidence that is not cumulative or redundant of that previously of record and relates to an unestablished fact necessary to substantiate the claim.

3.  There is an approximate balance of positive and negative evidence as to whether the Veteran has a bilateral hearing loss disability that was incurred in service.

CONCLUSIONS OF LAW

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

2.  Resolving doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1131, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran.  

Legal Criteria

Claim to Reopen

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  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); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2012).

Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In certain circumstances 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); see also Routen v. Brown, supra.

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).  

Factual Background and Analysis

Claim to Reopen

The RO initially denied service connection for bilateral hearing loss in a July 1992 rating decision. The Veteran was notified of the denial in an August 1992 letter.  He did not appeal the denial or submit any additional pertinent evidence within the appeal period. 

The basis for the 1992 denial was that there was no evidence of in-service complaints of bilateral hearing loss, nor was there a clinical link between his current bilateral hearing loss and noise exposure during service.  The medical evidence of record in July 1992 included the Veteran's service treatment records (STRs), the Veteran's own statements, and post-service treatment records showing hearing-related complaints.  There were no clinical records showing any link between the Veteran's hearing loss complaints and his military service.  

Evidence received since July 1992 includes VA treatment records, a September 2010 VA audiological examination report, and an October 2010 opinion from the Veteran's treating physician, the Veteran's December 2011 hearing transcript, and the Veteran's statements supporting his claim.  The most important piece of new evidence is the October 2010 opinion from the treating physician stating that the Veteran's noise exposure in the military could contribute to his current symptoms.  

A medical link between the Veteran's hearing loss disability and his noise conceded in-service noise exposure was an element of service connection that the RO found was not met in July 1992.  The Board finds that the recent VA treatment records and the October 2010 opinion are new and material as they relate to a previously unestablished element of entitlement to service connection-namely, it supports the presence of a current bilateral hearing loss disability and a possibility that it is related to service.  Accordingly, this evidence is sufficient to reopen the previously-denied claim for service connection for bilateral hearing loss.

Service Connection

The Veteran contends that he has bilateral hearing loss that is attributable to significant noise exposure during service.  He endorsed daily muzzle blasts/recoils as well as noise exposure while firing a Howitzer.  He indicated that he was not afforded hearing protection during service and was told to either stick his fingers in his ears or yawn while guns were firing.  

Service connection for tinnitus was awarded in a September 2010 rating decision and in-service noise exposure was conceded.  

A review of the Veteran's STRs shows, no complaints of any hearing related problems.  Audiological testing at separation revealed normal hearing without any threshold shifts.  

The Veteran first began to complain of bilateral hearing problems in the early to mid-1980s.  There were complaints of tinnitus and treating professionals noted evidence of old perforations of the left tympanic membrane.  

A 1985 private audiological examination revealed puretone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
30
45
LEFT
5
10
20
30
60

VA audiological examination in July 1992 revealed puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
20
45
40
LEFT
10
10
30
50
55

Speech discrimination testing was 96 percent, bilaterally.  The examiner provided no nexus opinion with respect to the etiology of the Veteran's bilateral hearing loss.

It appears that the Veteran began VA treatment for his bilateral hearing loss in the late-1990s and 2000s.  He was eventually fitted for bilateral hearing aids.  

In a September 2006 VA audiology note, the Veteran reported artillery noise exposure during service, and some post-service occupational noise exposure during employment in a machine shop and while driving trucks.  He described his hearing loss as gradually worsening.  

In a January 2007 VA treatment note, the treating professional indicated that the Veteran's speech discrimination testing is 72 percent in the left ear and 92 percent in the right ear.  Puretone thresholds were not listed at the time.  

The Veteran was afforded another VA audiological examination in September 2010, during which puretone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
30
50
55
LEFT
25
50
60
65
75

Speech recognition abilities were 86 percent in the right ear and 68 percent in the left.  

During the 2010 VA examination, the Veteran reported in-service noise exposure from Howitzers, rifles, and grenade launchers.  He again stated that hearing protection was not provided during his military service.  Following service, he worked as a truck driver in a paving unit and he moved equipment.  He stated that he was not afforded occupational hearing protection, but noted that he did not need it for the type of work he was performing.  He also drove school buses for 14 years after service.  He denied any recreational noise exposure. 

He stated that his hearing has gradually worsened and he is unable to hear what others are saying.  He stated that his hearing has "really gotten worse in the past 8-10 years."  

Following physical examination and interview of the Veteran, as well as review of the claims file, the examiner diagnosed the Veteran as having normal to moderately severe sensorineural hearing loss in the right ear and normal to severe sensorineural hearing loss in the left ear.  The examiner opined that the Veteran's bilateral hearing loss is less likely than not caused by his in-service noise exposure.  In so concluding, the audiologist indicated that there was no evidence to show that hearing loss was present at service separation or for nearly 20 years after service.  As such, his bilateral hearing loss is unrelated to military service.  

In October 2010, the Veteran's VA treating physician submitted a letter indicating that the Veteran had reported a long history of military noise exposure.  She opined that his noise exposure in the military could contribute to his current symptoms.  

During the Veteran's December 2011 hearing, he essentially testified that his bilateral hearing loss has been present since he was separated from service and it has progressively worsened.  

As an initial matter, the September 2010 audiological findings support the conclusion that the Veteran has a bilateral hearing loss disability for VA compensation purposes.  38 C.F.R. § 3.385 (2012).

Therefore, the question to be decided in the present appeal is whether such hearing loss is associated with the Veteran's active duty.  With respect to whether the Veteran experienced an in-service disease or injury, he asserts that he was exposed to acoustic trauma from the sounds of Howitzers, rifles, and grenades while performing duties of his military occupational specialty (MOS) in the Field Artillery.  This MOS was listed on his DD Form 214.  Based on this evidence, it is clear that the circumstances of the Veteran's service would have exposed him to acoustic trauma during service.  Thus, the Board does not dispute that he likely experienced acoustic trauma during service.

With respect to whether there is a nexus or relationship between the Veteran's current bilateral hearing loss disability and his military service, the Board acknowledges that the September 2010 VA examiner stated that the Veteran's hearing loss was unrelated to his acoustic trauma during service.  This was followed by a rationale that was based solely on the fact that the Veteran was not found to have a hearing loss disability at service separation or for more than 20 years thereafter.  It is important to note that the Board may not rely on a medical opinion that rejects a veteran's lay history solely because it is not corroborated by medical records.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Additionally, the treating physician indicated in her October 2010 letter that the Veteran's in-service noise exposure "could" have contributed to his current symptoms.  

These are both inadequate opinions as the September 2010 audiologist provided a negative nexus opinion based solely on lack of contemporaneous evidence of a disability, and the October 2010 treating physician indicated that his noise exposure in service "could have" caused his current symptoms.  Thus, the Board finds that these two purported opinions lack probative value.  

Additionally, the Veteran has consistently reported that he first experienced hearing loss and bilateral tinnitus in service, and they have continued since.  With respect to his bilateral hearing loss, he has consistently reported the types of noise exposure, the lack of hearing protection, and the suggestions given to him while in service to minimize the impact of noise exposure.  

The Board also notes that the Veteran is competent to describe the circumstances surrounding his in-service noise exposure and to report difficulties hearing, and as such comes to him through his senses and, as such, requires only personal knowledge rather than medical expertise.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  See also Buchanan, supra.

The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno, 6 Vet. App. at 469.  

As noted, the Veteran is competent to describe his in-service noise exposure and current difficulty hearing in his bilateral ears, and the Board finds that his assertions are credible.  Specifically, the Veteran is competent to report symptoms such as decreased hearing acuity continuously since service.  The Board has no reason to doubt the Veteran's assertions that he incurred acoustic trauma during service which caused bilateral hearing loss, has continued to experience decreased hearing acuity since then, and now has a diagnosis of bilateral sensorineural hearing loss.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Savage v. Gober, 10 Vet. App. 488, 495-98 (1997).  Continuity of symptomatology is, therefore, established for bilateral hearing loss.  See 38 C.F.R. § 3.303(b).

After a review of the evidence of record as a whole, and in light of the foregoing, the Board is satisfied that the Veteran's current bilateral hearing loss disability cannot be disassociated from his in-service exposure to acoustic trauma.  Thus, the medical and lay evidence for the claims and the evidence against the claims are at least in equipoise.  Accordingly, the benefit-of-the-doubt rule applies and service connection for bilateral hearing loss is warranted.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for bilateral hearing loss is granted.

Service connection for bilateral hearing loss is granted.



____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs