Citation Nr: 1329066 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-36 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from June 1963 to May 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2008 and March 2009 rating decisions and a June 2009 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which found that new and material evidence had not been submitted to reopen a claim for service connection for bilateral hearing loss. As the claim for service connection for bilateral hearing loss was previously denied, the Board must initially determine whether new and material evidence has been submitted to reopen the issue of whether service connection is warranted, regardless of the RO's actions. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran provided testimony at a videoconference hearing before the undersigned in September 2011. A transcript is of record. At the hearing, the Veteran provided a new private audiology report, which provided a diagnosis of bilateral hearing loss and a positive etiology opinion. Although this specific report was not previously considered by the agency of original jurisdiction (AOJ) in regard to the claims on appeal and was not accompanied by a waiver of AOJ consideration, the evidence is duplicative of evidence already received, specifically a January 2009 report from the same private audiologist. Therefore, a waiver of AOJ consideration is not necessary. See 38 C.F.R. § 20.1304(c) (2013). FINDINGS OF FACT 1. Entitlement to service connection for bilateral hearing loss was initially denied in an unappealed July 2005 rating decision; no new evidence or a notice of disagreement was received within one year of that decision. 2. Evidence received more than one year after the July 2005 rating decision was issued is not cumulative or redundant of the evidence previously of record and pertains to a basis for the prior denial of service connection for bilateral hearing loss. 3. Bilateral hearing loss was first demonstrated long after service, after significant post-service noise exposure, and is not etiologically related to service. CONCLUSIONS OF LAW 1. The July 2005 rating decision that denied the claim for service connection for bilateral hearing loss is final. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2013). 2. The evidence received since the July 2005 rating decision is new and material and pertains to a basis for the prior denial of service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court has held that, in claims to reopen, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was provided with Kent notice in December 2007. Moreover, as the Board is reopening the claim, further assistance is unnecessary to aid the Veteran in substantiating his claim to reopen service connection for bilateral hearing loss is not required. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In the December 2007 letter, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the December 2007 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Veteran was provided a proper VA examination in July 2010 to determine the etiology of his hearing loss. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the July 2010 VA examination and medical opinion obtained in this case is more than adequate, as it is predicated on a full reading of the service treatment records as well as the VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the bilateral hearing loss issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Claim to Reopen If a notice of disagreement is not received within one year of the notice of an RO decision, and no new and material evidence is received during that period; the decision will become final. 38 U.S.C.A. § 7105(b)-(c) (West 2002); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Generally, a claim which has been finally denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). However, 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. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Service connection for bilateral hearing loss was initially denied in a July 2005 rating decision on the basis that the evidence did not demonstrate that a current bilateral hearing loss disability. The Veteran did not submit a notice of disagreement within one year of notice of that decision; nor was any additional evidence received during that period. Therefore, the decision on the claim became final. 38 U.S.C.A. 38 U.S.C.A. §§ 7104(b), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103; cf. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156(c) (2011)). The claim was denied again in a March 2008 rating decision on the basis that new and material evidence had not been submitted to reopen the claim. However, in January 2009, a private audiology report which demonstrated a current bilateral hearing loss disability was submitted that same month. Therefore, that decision did not become final. Id. The evidence of record at the time of the July 2005 decision included multiple in-service and post-service audiogram reports, which demonstrated that the Veteran did not have qualifying hearing loss under 38 C.F.R. § 3.385 (2013) during service or at the time of the claim. Evidence received since the July 2005 decision, including the January 2009 private audiology report, demonstrates that a current hearing loss disability has been diagnosed. This evidence is new in that it was not previously of record. It pertains to a basis for the prior denial, namely that the Veteran did not have a bilateral hearing loss disability. At the time of the prior final denial there had been no post-service demonstration of hearing loss disability as defined by VA. The newly received evidence raised a reasonable possibility of substantiating the claim and triggered VA's duty to get an examination, the last of which was obtained in July 2010. Shade v. Shinseki, 24 Vet. App. 110 (2010); see 38 U.S.C.A. § 5103A(d) (West 2002) (VA's duty to provide an examination in a service connection claim is triggered when there is competent evidence of a current disability and that it might be related to service, but the evidence is insufficient to decide the claim). As new and material evidence has been received, the claim is reopened. The Board notes that the RO also addressed the merits of the service connection claim in the March 2009 rating decision. Therefore, the Board will address the merits below. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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); 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 for certain chronic disabilities is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between 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"). 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). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall be established when hearing status meets certain pure tone and speech recognition criteria. Hearing loss status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater, the auditory thresholds for at least three of these frequencies 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 (2013). 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. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has reported, and multiple VA examination reports have noted, that he has had difficulty participating in an audiogram. Nevertheless, a January 2009 private audiogram report demonstrates current bilateral hearing loss according to VA regulation, as all pure tone thresholds at the relevant levels were above 26 decibels. Similar findings of a current bilateral hearing loss disability were noted in a September 2011 private audiogram report by the same audiologist and in a July 2010 VA examination. During the Board hearing, the Veteran reported noise exposure from weapons fire throughout his service. His statements regarding in-service noise exposure are consistent with the conditions of his service as a light weapons infantryman and are found to be credible. Moreover, his DD 214 demonstrates that he achieved expert level status with the rifle. Accordingly, though the claimed noise exposure is not shown in the service treatment records, its incurrence is conceded in accordance with the provisions of 38 U.S.C.A. § 1154(b). Two of the three elements necessary for service connection-current bilateral hearing loss and an in-service injury-are thus demonstrated. However, service connection also requires a nexus or a continuity of symptomatology between current symptoms and such in-service noise exposure or a qualifying bilateral hearing loss disability within one year of discharge. Service treatment records include an enlistment audiogram conducted in June 1963 and a separation audiogram conducted in March 1966, both of which revealed bilateral hearing loss to be within normal limits. At no time was an auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz 40 decibels or greater, the auditory thresholds for at least three of these frequencies 26 decibels or greater, or speech recognition scores using the Maryland CNC Test less than 94 percent. In fact, the separation examination findings revealed that his hearing from 500 to 4000 Hertz had actually either improved or stayed the same since his enlistment examination. Moreover, the Veteran denied ear, nose, and throat trouble as well as running ears in a March 1966 report of medical history. The service treatment records are negative for any evidence of hearing loss. The Veteran received multiple VA examinations in this case. During the first two in January 2008 and March 2009, the audiogram results were found to be unreliable. Therefore, an etiology opinion was not provided. However, during the January 2008 examination, the Veteran reported post-service noise exposure from his work as a welder for 32 years with hearing protection. During the March 2009 examination, he reported work as a welder for 20 years and stated that he did not use hearing protection on the job. During both examinations, the Veteran reported the use of power tools post-service without hearing protection. A third VA examination was obtained in July 2010, where the examiner reviewed the claims folder, including the prior VA examinations and the January 2009 private opinion, as well as the Veteran's reports regarding his history of noise exposure. The Veteran reported the in-service noise exposure from weapons fire; he also reported noise exposure during his work as a welder for 30 years. The VA examiner concluded that the Veteran's current bilateral hearing loss was not caused by or the result of military noise exposure. Citing the Institute of Medicine report on noise exposure in the military, the examiner noted that noise induced hearing loss occurs immediately and does not have a delayed onset of weeks, months, or years after the exposure event(s). Given the fact that the Veteran's hearing was found to be normal at enlistment and at discharge, the examiner stated that any current complaints or findings of hearing loss were not related to military acoustic trauma. The Board notes that two private opinions were provided by the same private audiologist. In January 2009, the private audiologist stated that after reviewing the Veteran's service history, it was just as likely as not that some of the Veteran's hearing loss could be the result of his exposure to hazardous noise while in the military. Similarly, in September 2011, the audiologist stated that after reviewing the Veteran's reported service history, it was at least as likely as not that some of his hearing loss was the result of such exposure during service. The Board finds the private audiologist's opinions to be inadequate and less probative than the 2010 VA opinion for the purpose of determining the etiology of the Veteran's bilateral hearing loss. Regarding the 2009 opinion, the Board notes that in Obert v. Brown, the Court held that a medical opinion expressed in terms of "may," also implies "may or may not" and is too speculative to establish a plausible claim. Bostain v. West, 11 Vet. App. 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993). The Board finds that the use of the word "could" in the 2008 opinion has the same import and is, therefore, too speculative to support the claim. Moreover, to the extent that a more definite opinion was provided in either private opinion, the Board finds the 2010 VA opinion to be more probative. The examiner reviewed the entire claims folder, including the private examiner's 2009 opinion and the Veteran's statements, considered both the in-service and post-service noise exposure, and cited to medical literature to support the conclusion that acoustic noise exposure does not result in delayed onset hearing loss. The only other evidence in favor of a positive nexus between current hearing loss and in-service noise exposure are the Veteran's contention. He is competent to report symptoms such as decreased hearing acuity, and when such symptoms began. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the record reflects a significant gap of just under 40 years between discharge and evidence of his first complaints of hearing loss, which came in the form of a claim for VA compensation in January 2005. The Veteran has not reported a continuity of symptomatology and has reported significant post-service noise exposure for several decades. Moreover, his reports regarding his use of post-service hearing protection have been inconsistent. Therefore, his reports regarding a link between service and his current hearing loss are found to not be credible. Moreover, it would require medical expertise to say that the current hearing loss, first shown long after service, was the result of in-service noise exposure, as opposed to some other cause, such as noise exposure from work as a welder. There is no evidence that the Veteran possesses such expertise. Hence, he would not be competent to say that his delayed onset hearing loss is related to service. The only competent opinion, that of the VA examiner, is against the claim. That opinion considered an accurate history and was supported by a complete rationale. Therefore, the weight of the evidence is against a nexus between the current bilateral hearing loss and service, and the claim is denied. In arriving at this decision, the Board has considered the benefit-of-the-doubt rule. 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER New and material evidence has been received; the claim for entitlement to service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs