Citation Nr: 1329015 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 06-35 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: J. Michael Woods, attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from October 1966 to May 1969. This appeal to the Board of Veterans Appeals (Board) arises from a June 2006 rating action by the Regional Office (RO) in Newark, New Jersey, which denied claims for service connection for bilateral hearing loss, and tinnitus. In April 2008, the Veteran was afforded a hearing before a Decision Review Officer at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. In an unappealed decision, dated in August 1974, the RO denied a claim for service connection for hearing loss. 2. The evidence received since the RO's August 1974 decision, which denied a claim of entitlement to service connection for hearing loss, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. 3. The Veteran does not have hearing loss, or tinnitus, that was caused or aggravated by his service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO's August 1974 decision which denied a claim for service connection for hearing loss; the claim for service connection for hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 2. Bilateral hearing loss, and tinnitus, were not incurred in or aggravated by active military service, nor may in-service occurrence of sensorineural hearing loss be presumed. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material The appellant asserts that new and material evidence has been presented to reopen the claim for service connection for hearing loss. At his hearing, held in April 2008, he testified that during service he served as a gunner aboard helicopters in Vietnam, and that he had hearing loss in the early 1970s. In August 1974, the RO denied the Veteran's claim for service connection for hearing loss. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c). In July 2005, the Veteran filed to reopen the claim. In June 2006, the RO denied the claim. The Veteran has appealed. The June 2006 RO decision appears to have denied the claim on the merits. See also July 2008 supplemental statement of the case. Regardless of the determination reached by the RO, the Board must find that new and material evidence has been presented in order to establish its jurisdiction. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered on the merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 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 (2012). A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 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. Kightly 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) (2012). 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 had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2012). The Board observes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. The military audiogram in the instant case, conducted in October 1966, must be converted from ASA to ISO units. Essentially, this means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz. When a medical professional determines that a current condition is related to an inservice event, then it necessarily follows that the current condition was incurred during service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992) (if a medical relationship exists between current hearing loss and inservice acoustical trauma, it follows that an injury was incurred during service); Hensley v. Brown, 5 Vet. App. 155 (1993) (notwithstanding that hearing loss was not noted upon separation, a medial relationship between current hearing loss and noise exposure during service demonstrates that the veteran incurred an injury during service). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. The law provides that, in the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence of an injury incurred in service shall be accepted as sufficient proof of service incurrence of the injury if the evidence is consistent with circumstances of service and notwithstanding that there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b); see also VAOPGCPREC 12-99, 65 Fed. Reg. 6256 -6258 (2000). In this case, the Veteran's service records showed that he served in the Republic of Vietnam between April 1968 and May 1969, with principal duty as a door gunner with an aviation unit beginning in June 1968. His awards include the Vietnam Service Medal, the Vietnam Commendation Medal, an Air Crew Member Badge, and an Air Medal (15 clusters). Under the circumstances, it appears that participation in combat was established and the Veteran was entitled to the presumptions at 38 U.S.C.A. § 1154(b). Although a veteran was deemed to have participated in combat, the Court has held that 38 U.S.C.A. § 1154 does not alter the fundamental requirements of a diagnosis, and a medical nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). The Veteran's service treatment reports included audiometric examination results taken upon entrance and separation from service, in October 1966 and May 1969, respectively, which did not show that the Veteran had hearing loss in either ear as defined for VA purposes at 38 C.F.R. § 3.385. In the associated "report of medical history" to the May 1969 separation examination report, the Veteran indicated that he did not have a history of hearing loss. The only post-service medical evidence consisted of a VA examination report, dated in July 1974, which did not include any relevant complaints, findings, or diagnoses. At the time of the RO's August 1974 denial of the claim. There was no competent evidence to show that the Veteran had hearing loss in either ear, or that hearing loss in either ear was related to his service. The most recent and final denial of this claim was in August 1974. Therefore, the Board must determine if new and material evidence has been submitted since that time. See 38 U.S.C.A. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence received since the RO's August 1974 rating decision consists of VA and non-VA reports, dated between 2005 and 2013. This evidence includes VA examination reports, dated in September 2005 and May 2008, which both show that the Veteran has bilateral hearing loss as defined for VA purposes at 38 C.F.R. § 3.385. This evidence, which was not of record at the time of the August 1974 decision, is not cumulative, and is "new" within the meaning of 38 C.F.R. § 3.156. At the time of the RO's August 1974 decision, there was no competent evidence of record to show the existence of hearing loss in either ear. The submitted evidence shows that the Veteran has bilateral hearing loss as defined for VA purposes at 38 C.F.R. § 3.385. The Board therefore finds that the submitted evidence is both new and material, and that it raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110 (2010) (38 C.F.R. § 3.159(c)(4) "does not require new and material evidence as to each previously unproven element of a claim."). The claim is therefore reopened. The appeal is granted to this extent only. II. Service Connection The Veteran contends that his current hearing loss and tinnitus are the result of exposure to loud noise during the course of his military duties as a helicopter crewman, to include participation in combat as a door gunner and exposure to rocket and machine gun fire without hearing protection. At his hearing, held in April 2008, he testified that during service he served as a gunner aboard helicopters in Vietnam, and that he had hearing loss in the early 1970s. He further indicated that he had ringing in his ears, and hissing noises, during service. He has reported a post-service employment history as a police officer for 30 years, with use of hearing protection while qualifying for use of firearms. He has denied exposure to recreational noise. In July 2005, the Veteran filed his claims. In June 2006, the RO denied the claims. In August 2006, a timely notice of disagreement was received as to both issues, and in September 2006, a statement of the case was issued as to both issues. Although the Veteran's appeal (VA Form 9), received in November 2006, only mentioned tinnitus, in April 2008, testimony was taken as to both the hearing loss and tinnitus issues. In addition, in July 2008, a supplemental statement of the case was issued as to both issues. The requirement that an appeal be perfected by filing a substantive appeal on the claim for service connection for hearing loss is therefore waived. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected). The Veteran's service treatment records were summarized in Part I. The post-service medical evidence consists of VA and non-VA reports, dated between 1974 and 2013. A VA examination report, dated in July 1974, does not include any relevant complaints, findings, or diagnoses. In September 2005, the Veteran was afforded a VA audiological examination, the report of which shows a diagnosis of bilateral sensorineural hearing loss. In an addendum, dated in May 2006, the VA audiologist concluded that the Veteran's hearing loss and tinnitus were not caused by or a result of his active military service. The audiologist explained that the Veteran's hearing had been within normal limits on induction and separation audiographic examinations in military service, that there was no complaint of tinnitus or evidence of hearing loss upon VA rating in August 1974, and that there was no evidence documenting that hearing loss and tinnitus were incurred in or aggravated by military service, nor medical evidence that these conditions were manifested to a compensable degree within one year following military service. A VA audiometric examination report, dated in May 2008, shows that the Veteran had bilateral hearing loss as defined for VA purposes at 38 C.F.R. § 3.385. The examiner concluded that the Veteran's hearing loss and tinnitus were not caused by or a result of active military service. The examiner explained that the Veteran's enlistment and separation examination reports showed that his hearing was within normal limits, that the August 1974 VA examination was negative for a complaint of tinnitus, and that it did not show evidence of hearing loss. In addition, the examiner stated that there was no evidence documenting that hearing loss and tinnitus were incurred in or aggravated by military service, and no medical evidence to show that either of these conditions were manifested to a compensable degree within one year of separation from service. In June 2013, the Board requested a Veterans Hospital Administration (VHA) opinion. The Board noted that the rationale in the May 2006 VA opinion was inadequate (citing the substance of the Court's decision in Hensley v. Brown, 5 Vet. App. 155 (1993)). The Board therefore requested that etiological opinions be provided as to the Veteran's hearing loss, and tinnitus. A VHA opinion, dated in July 2013, shows that a VA audiologist stated that the Veteran's claims files had been reviewed. The audiologist stated the following: Noise exposure is conceded on the basis of his military occupation specialty. Service records indicate no hearing loss or significant threshold changes greater than normal measurement viability. The Veteran may have been exposed to hazardous levels of noise but service records showed no hearing loss or significant changes in hearing thresholds during military service or at the time of discharge. The Institute of Medicine (IOM, 2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was "unlikely." Based on the objective evidence (frequency specific audiometrics), there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the Veteran's military service including noise exposure. Therefore, it is less likely as not that the Veteran's current hearing loss is due to his claimed in-service acoustic trauma. With regard to the Veteran's reported tinnitus, because there is no objective evidence of noise injury, there is no basis upon which to conclude that the claimed tinnitus is associated with such injuries. In the absence of an objectively verifiable noise injury (audiograms), the association between claimed tinnitus and noise exposure is speculative. In order to give an opinion that tinnitus is related to noise exposure, I would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. Such an opinion directly contradicts the objective evidence in the record. Based on my review of the evidence available in the record, tinnitus is less likely as not related to the Veteran's military service to include noise exposure. A private audiometric examination report, dated in May 2013, contains only charted results. However, the Board will assume it establishes bilateral hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385, and additional development is therefore not required. See Savage v. Shinseki, 24 Vet. App. 259 (2010). In an associated letter, the private audiologist stated that the Veteran had a history of noise exposure while he was in the military, and as a police officer. The Veteran was noted to report intractable tinnitus, and difficulty understanding speakers in ambient noise. The Veteran was noted to have mild to moderate sensorineural hearing loss. The Board has determined that the claims must be denied. There is no evidence to show any relevant treatment during service, nor has the Veteran claimed that he was treated for hearing loss or tinnitus during service. In addition, the earliest medical evidence of either hearing loss, or tinnitus, is dated in 2005. This is approximately 35 years after separation from service. Furthermore, there is no competent evidence to show that the Veteran has hearing loss, or tinnitus, that is related to his service. The only competent opinions are found in the 2006 and 2013 VA reports, and these opinions weigh against the claims. In this regard, the July 2013 VHA opinion is considered to be highly probative, as it is shown to have been based on a review of the Veteran's claims files, and it is accompanied by a sufficient explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, there is no competent evidence to show that sensorineural hearing loss was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. With regard to the appellant's own contentions, a layperson is generally not capable of opining on matters requiring complex medical knowledge. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The issues on appeal are based on the contentions that hearing loss, and tinnitus, are related to his service. He is competent to report such symptoms. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, competency of evidence must be distinguished from the weight and credibility of the evidence, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran's service treatment reports and post-service medical records have been discussed. Etiological opinions have been obtained which weigh against the claims. Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that his hearing loss, and tinnitus, are related to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). The Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. The Veterans Claims Assistance Act of 2000 (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in August 2005, May 2008, and April 2012. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded an examination, and etiological opinions have been obtained. In April 2008, the appellant was provided an opportunity to set forth his contentions during a hearing before a Decision Review Office (DRO). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the April 2008 DRO hearing, the issues on appeal were identified. The appellant was provided the opportunity to explain his arguments, and the criteria for a successful resolution of his claims were discussed. The testimony did not reflect that there were any outstanding medical records available that would support his claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. The appellant and his representative have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. In summary, the Board finds that the available medical evidence is sufficient for an adequate determination of the claims on appeal. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim does not cause any prejudice to the appellant. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER New and material evidence has been received to reopen the claim for service connection for hearing loss, and the appeal, to this extent only, is granted. Service connection for hearing loss, and tinnitus, is denied. _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs