Citation Nr: 1329210	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  11-10 806	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Pittsburgh, Pennsylvania


THE ISSUES

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

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

B. J. Dempsey, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1968 to December 
1972.  He is a Vietnam veteran who earned the Combat Action 
Ribbon (CAR).

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a May 2008 decision by the Department 
of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, 
Pennsylvania, which denied service connection for tinnitus 
and declined to reopen a previously denied claim for service 
connection for bilateral hearing loss.  

To establish jurisdiction over the new and material issue on 
appeal, the Board must first consider whether new and 
material evidence has been received to reopen the claim.  38 
U.S.C.A. §§ 5108, 7105 (West 2002).  The Board must proceed 
in this fashion regardless of the RO's actions.  Barnett v. 
Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92.  
As discussed fully in the following decision, the Board 
finds that new and material evidence sufficient to reopen 
the previously denied claim for service connection for 
bilateral hearing loss has been received.  The Board will, 
therefore, also address in this decision the underlying 
claim for service connection for bilateral hearing loss. 

With respect to tinnitus, the Board finds that the Veteran's 
February 1989 claim was restricted to service connection for 
hearing loss.  The Veteran's August 2007 letter and the 
accompanying audiology report from S.M. form a current 
diagnosis of tinnitus and claim for service connection.  
Therefore, the Veteran has raised a new claim for tinnitus, 
obviating the need for new and material evidence.  See Boggs 
v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (recognizing that 
claims based on distinctly and properly diagnosed diseases 
or injuries cannot be considered the same claim); see also 
Charles v. Principi, 16 Vet. App. 370, 374 (supporting the 
fact that tinnitus is a condition capable of lay observation 
and diagnosis).  Therefore, the Board has recharacterized 
the tinnitus claim as noted on the title page to reflect 
this procedural history.

The issues of entitlement to service connection for erectile 
dysfunction and entitlement to an increased rating for 
posttraumatic stress disorder (PTSD) have been raised in a 
June 2012 statement, but have not been adjudicated by 
the Agency of Original Jurisdiction (AOJ).  Therefore, the 
Board does not have jurisdiction over them, and they are 
referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  In an unappealed February 1990 decision, the RO in 
Detroit, Michigan, denied service connection for bilateral 
hearing loss.

2.  Evidence received since the final February 1990 denial 
of service connection for hearing loss relates to an 
unestablished fact necessary to substantiate that issue and 
raises a reasonable possibility of substantiating that 
underlying claim.

3.  The Veteran has current diagnoses of bilateral 
sensorineural hearing loss and tinnitus.

4.  The Veteran experienced acoustic trauma in service.

5.  The Veteran has demonstrated continuous symptoms of 
bilateral sensorineural hearing loss since service.

6.  The Veteran's tinnitus is related to acoustic trauma in 
service. 


CONCLUSIONS OF LAW

1.  The February 1990 RO decision denying service connection 
for bilateral hearing loss is final.  38 U.S.C.A. § 7105(c) 
(West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 
(2012). 

2.  Evidence received since the final February 1990 decision 
is new and material, and the claim of entitlement to service 
connection for bilateral hearing loss is reopened.  
38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105(c) (West 2002 & 
Supp. 2012); 38 C.F.R. §§ 3.156, 20.1103 (2012).

3.  The criteria for service connection for bilateral 
hearing loss have been met.  38 U.S.C.A. §§ 1110, 1111, 
1112, 1131, 5102, 5103, 5103A, 5107, 5108, 5126 (West 2002 & 
Supp. 2012); 38 C.F.R. §§  3.156, 3.159, 3.303, 3.307, 
3.309, 3.326, 3.385 (2012).  

4.  The criteria for service connection for tinnitus have 
been met.  38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107, 
5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 
3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.	 Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and 
implementing regulations impose obligations on VA to provide 
claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.326(a) (2012).  The Board has 
considered the legislation regarding VA's duty to notify and 
to assist claimants but finds that, given the favorable 
action taken herein with regard to the issue of whether new 
and material evidence has been received sufficient to reopen 
the previously denied claim for service connection for 
hearing loss, as well as the underlying de novo aspects of 
this appeal, no further discussion of these VCAA 
requirements is required with respect to these matters.  
See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). 




II.  New and Material Evidence - Hearing Loss

The Veteran seeks to reopen his claim for service connection 
for bilateral hearing loss, which was originally denied by 
the RO in Detroit, Michigan, in February 1990 on the basis 
that the Veteran did not have a current diagnosis of hearing 
loss for VA purposes at that time.  See 38 C.F.R. § 3.385.  
The Veteran did not file a notice of disagreement.  In June 
1995, the Veteran's claim file was transferred to the 
jurisdiction of the RO in Pittsburgh, Pennsylvania.

In August 2007, the Veteran requested that the RO reopen his 
claim for bilateral hearing loss and begin a new claim for 
service connection for tinnitus.

A decision of the RO becomes final and is not subject to 
revision on the same factual basis unless an appeal is 
initiated within one year of the notice of decision, or 
within 60 days of the issuance of the statement of the case 
(SOC). 38 U.S.C.A. 
§ 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).  If a 
claim of entitlement to service connection has been 
previously denied and that decision became final, the claim 
can be reopened and reconsidered only if new and material 
evidence is presented with respect to that claim.  38 
U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 
(1991).

The Board must consider the question of whether new and 
material evidence has been received because it goes to the 
Board's jurisdiction to reach the underlying claim and 
adjudicate the claim de novo.   Jackson v. Principi, 265 
F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380  
(Fed. Cir. 1996).   If the Board finds no such evidence has 
been offered, the analysis ends there, and what the RO may 
have determined in that regard is irrelevant.  Barnett, 
supra.   Further analysis, beyond consideration of whether 
the evidence received is new and material, is not permitted.  
Id. at 1384; Butler v. Brown, 9 Vet. App. 167, 171  (1996).

"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 previous evidence of 
record, relates to an unestablished fact necessary to 
substantiate the claim.  Id.  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.  Id.  In 
determining whether the evidence is new and material, the 
"credibility of the evidence is to be presumed."  Justus v. 
Principi, 3 Vet. App. 510, 513 (1992).  However, VA need not 
accept the patently incredible for purposes of reopening.  
Duran v. Brown, 7 Vet. App. 216   (1994). 

A December 2011 VA audiology examination shows pure tone 
thresholds, in decibels (dB), as follows:


HERTZ (Hz)

500
1000
2000
3000
4000
RIGHT
25
20
30
35
35
LEFT
25
25
30
35
45

This evidence is new, having been submitted after the 
February 1990 rating decision.  Further, this evidence is 
material because it establishes a current hearing loss 
disability for VA purposes by showing auditory thresholds at 
2000 Hz, 3000 Hz and 4000 Hz to be 26 dB or greater in both 
ears.  See 38 C.F.R. § 3.385.  In tending to substantiate 
the Veteran's claim by bolstering an element of the claim 
for service connection previously found to be absent, the 
new evidence raises the reasonable possibility of 
substantiating the claim for service connection for his 
hearing loss disability.  Thus, the Board finds that this 
additional evidence is both new and material and that 
reopening the previously denied claim for service connection 
for bilateral hearing loss is warranted.  See 38 U.S.C.A. 
§ 5108.

In reaching the conclusion that the February 1990 rating 
decision is final, the Board is cognizant of Bond v. 
Shinseki, 659 F.3d 1362 (2011), which held that 38 C.F.R. 
§ 3.156(b) requires that VA evaluate submissions during 
relevant time periods to determine whether they contain new 
and material evidence relevant to the pending claim, even if 
the new submission may support a new claim.  Here, no new 
evidence pertinent to the issue of entitlement to service 
connection for bilateral hearing loss was received between 
the February 1990 rating decision and the August 2007 claim.  
The February 1990 rating decision is thus final.  

With respect to tinnitus, the Board finds that the Veteran's 
February 1989 claim was restricted to service connection for 
hearing loss.  The February 1990 rating decision reached no 
finding on the issue of tinnitus, nor was the issue raised 
by the Veteran.  In contrast, the Veteran's August 2007 
letter and the accompanying audiology report from A.P. form 
a current diagnosis of tinnitus and claim for service 
connection.  Therefore, the Veteran has raised a new claim 
for tinnitus, obviating the need for new and material 
evidence.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 
2008) (recognizing that claims based on distinctly and 
properly diagnosed diseases or injuries cannot be considered 
the same claim); see also Charles v. Principi, 16 Vet. App. 
370, 374 (supporting the fact that tinnitus is a condition 
capable of lay observation and diagnosis).

The Board may proceed with a merits adjudication of the 
Veteran's claim of service connection for hearing loss 
because the Veteran has had the opportunity to present 
evidence and argument on the underlying service connection 
issue and there is no prejudice to the Veteran in the Board 
considering the merits in the first instance, as the full 
benefit sought (service connection) is being granted.  See 
Bernard v. Brown, 4 Vet. App. 384 (1993).


III.  Service Connection Laws and Regulations

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
military, naval, or air service.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may 
be granted for any disease initially diagnosed after service 
when all the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  38 
C.F.R. 
§ 3.303(d).  As a general matter, service connection for a 
disability requires evidence of: (1) the existence of a 
current disability; (2) the existence of the disease or 
injury in service, and; (3) a relationship or nexus between 
the current disability and any injury or disease during 
service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 
2004); see also Hickson v. West, 12 Vet. App. 247, 253 
(1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 
aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Under 38 C.F.R. § 3.303(b), service connection will be 
presumed where there are either chronic symptoms shown in 
service or continuity of symptomatology since service for 
diseases identified as chronic in 38 C.F.R. § 3.309(a); 
Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) 
(holding that continuity of symptomatology is an evidentiary 
tool to aid in the evaluation of whether a chronic disease 
existed in service or an applicable presumptive period).  
Here, bilateral sensorineural hearing loss (organic disease 
of the nervous system) is a "chronic disease" listed under 
38 C.F.R. § 3.309(a); tinnitus is not.  Therefore, 38 C.F.R. 
§ 3.303(b) applies to the Veteran's claim for service 
connection for bilateral hearing loss.

For purposes of applying VA laws, impaired hearing is 
considered a disability when the auditory threshold in any 
of the frequencies 500, 1000, 2000, 3000, and 4000 hertz 
(Hz) is 40 decibels or greater; or when the auditory 
thresholds for at least three of the frequencies 500, 1000, 
2000, 3000, and 4000 Hz 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.  VA regulations do 
not preclude service connection for a hearing loss which 
first met VA's definition of disability after service.  
Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

Competency of evidence differs from weight and credibility.  
Competency is a legal concept determining whether testimony 
may be heard and considered by the trier of fact, while 
credibility is a factual determination going to the 
probative value of the evidence to be made after the 
evidence has been admitted.  Rucker v. Brown, 
10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 
(1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) 
(although interest may affect the credibility of testimony, 
it does not affect competency to testify).  A veteran is 
competent to report symptoms because this requires only 
personal knowledge, not medical expertise, as it comes to 
him through his senses.  See Layno, 6 Vet. App. at 469.

The Board is charged with the duty to assess the credibility 
and weight given to evidence.  Wensch v. Principi, 15 Vet. 
App. 362, 367 (2001); Wood v. Derwinski, 
1 Vet. App. 190, 193 (1991).  In weighing credibility, VA 
may consider interest, bias, inconsistent statements, bad 
character, internal inconsistency, facial plausibility, self 
interest, consistency with other evidence of record, 
malingering, desire for monetary gain, and demeanor of the 
witness.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 
aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  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.  Buchanan v. Nicholson, 451 F.3d 1331 
(Fed. Cir. 2006).

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the claimant prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim, in which case, the claim is denied.  38 U.S.C.A. 
§ 5107(b); 38 C.F.R. § 3.102.

IV.  Service Connection Analysis for Hearing Loss and 
Tinnitus

The Veteran contends that he currently suffers from 
bilateral hearing loss and tinnitus due to military noise 
exposure.  He asserts that he was exposed to the loud noise 
of mortar attacks and combat while performing his duties as 
a rifleman during his tour of duty in the Republic of 
Vietnam.

Combat veterans are entitled to have their statements as to 
injuries sustained in a combat setting accepted, under 38 
U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  That law does not 
by itself, however, establish a basis for the grant of 
service connection. The claimant is still required to meet 
other evidentiary burdens as to service connection, such as 
whether there is a current disability or whether there is a 
link between service and the currently claimed disability, 
both of which require competent evidence.  See Wade v. West, 
11 Vet. App. 302 (1998) (holding that evidence of a causal 
nexus between an in-service event and a current disability 
is still required even when a veteran is shown to have 
participated in combat); Collette v. Brown, 82 F.3d 389, 392 
(1996).

After a review of the evidence, the Board finds that the 
Veteran currently has a bilateral hearing loss disability 
for VA purposes.  As discussed in the previous section, the 
Veteran submitted to a VA audiological examination in 
December 2010, which included an audiogram.  Further, speech 
recognition was evaluated using the Maryland CNC Test, 
revealing scores of 92 percent in the right ear and 88 
percent in the left ear.  There is no indication that the 
audiometric results are unreliable or otherwise inadequate.  
The audiologist also noted that the Veteran demonstrated 
mild to moderate sensorineural hearing loss bilaterally.

The above evidence sufficiently establishes a "disability" 
of current bilateral hearing loss as defined by 38 C.F.R. 
§ 3.385 (referred to as "impairment"), as the speech 
recognition scores using the Maryland CNC Test are less than 
94 percent for both ears.  Moreover, the auditory threshold 
at the 2000 Hz, 3000 Hz, and 4000 Hz frequencies is greater 
than 26 dB in both ears.  

Similarly, the Board finds that the Veteran has a current 
tinnitus disability.  During the same December 2010 VA 
audiological examination, the Veteran reported constant 
tinnitus in both ears.  Tinnitus is a condition capable of 
lay observation and diagnosis.  See Charles, 16 Vet. App. at 
374 ("ringing in the ears is capable of lay observation").  
There is no evidence in the record to suggest that the 
Veteran's account of having tinnitus is not credible.  

The Board also finds that the Veteran was exposed to loud 
noises (i.e., suffered acoustic trauma) during service.  The 
Veteran's DD Form 214 shows that he had Vietnam service, 
served as a rifleman, and is in receipt of the CAR.  The 
Veteran has reported being exposed to mortar attacks during 
his period of service.  The Board finds the Veteran's 
competent lay account of having been exposed to military 
noises is consistent with the circumstances, conditions, and 
hardships of his service and is, therefore, credible.  See 
38 U.S.C.A. § 1154(b).  

The first documented complaint of ear trouble appears in an 
in-service notation from July 1969, when the Veteran 
reported otalgia (ear pain) in his right ear.  Tinnitus was 
not reported at the time.  Service treatment records (STRs) 
do not contain any other complaints, diagnoses, or treatment 
for ear or hearing trouble.  Significantly, the Veteran 
received a normal clinical evaluation of his ears during his 
December 1972 service separation examination and did not 
report any history of hearing loss or ear trouble during his 
January 1971 Report of Medical History, the last on record.

However, STRs show an upward threshold shift in hearing 
ability during service.  The May 1968 service entry 
examination includes an audiogram showing pure tone 
thresholds, in decibels, as follows:


HERTZ (Hz)

500
1000
2000
3000
4000
RIGHT
0
0
-5
X
-5
LEFT
10
0
0
X
0

In comparison, the Veteran's audiogram from his December 
1972 service separation examination displayed the following:


HERTZ (Hz)

500
1000
2000
3000
4000
RIGHT
20
15
15
15
15
LEFT
15
15
15
15
15
 
Following service, the Veteran first reported impaired 
hearing in a February 1989 VA Form 21-526.  He stated that 
hearing impairment began between 1969 and 1970.  He also 
reported right ear pain and dullness.  A VA audiology 
examination followed in September 1989, revealing the 
results below:


HERTZ (Hz)

500
1000
2000
3000
4000
RIGHT
X
10
10
10
15
LEFT
X
15
5
10
15

Speech audiometry showed speech recognition ability of 94 
percent in the right ear and 98 percent in the left ear.  
Also in September 1989, the Veteran submitted a VA Form 21-
2545, in which he reported "right ear pain starting in 1969 
with a dullness in hearing."  Further, the Veteran explained 
that "sounds seem to be muffled on the right side" and that 
he had difficulty hearing low spoken voices.

In August 2007, the Veteran sought private medical treatment 
for sinus problems.  During his evaluation, the examiner 
referred the Veteran for audiometric evaluation, stating 
that "his largest problem is the hearing loss."  When the 
Veteran returned for audiometric testing later in August 
2007, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
X
35
LEFT
15
15
15
X
40

The audiologist also diagnosed normal to mild sensorineural 
hearing loss.

In April 2011, the Veteran submitted a VA Form 9 in which he 
reported coming under mortar and rocket attacks in May 1969.  
He explained that "it was like I was hearing through water" 
and began hearing buzzing in his ears for the first time.

In December 2011, the Veteran submitted to a VA audiology 
examination and was diagnosed with bilateral mild to 
moderate sensorineural hearing loss and, as detailed above, 
displayed hearing loss for VA purposes in both ears.  Taking 
account of the Veteran's medical history, noise exposure in 
service, and STRs, the VA examiner opined that the Veteran's 
current hearing loss "is not likely due to noise exposure in 
service."

Nonetheless, the Board finds that the Veteran has displayed 
continuity of symptomatology sufficient to satisfy service 
connection on a presumptive basis.  He is competent to 
testify on experiencing symptoms of hearing loss.  See Layno 
v. Brown, 6 Vet. App. 465 (1994) (noting that even 
disabilities not subject to lay diagnosis may have symptoms 
detectable by a lay person).  The Veteran first reported ear 
pain in July 1969, as noted in his STRs.  Most recently, in 
his April 2011 VA Form 9, the Veteran stated that he began 
experiencing hearing impairment following a mortar and 
rocket attack while serving in Vietnam in May 1969.  
Although he did not display hearing loss for VA purposes at 
the time, the Board observes that the December 1972 service 
separation examination deviates from his May 1968 service 
entry examination, showing an upward threshold shift.  See 
Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) (holding 
that the absence of a hearing loss disability in service 
does not preclude service connection for a hearing loss 
disability and noting the need to evaluate upward shifts in 
tested thresholds during service when there is a current 
hearing loss disability).  The Veteran filed a claim for 
service connection for hearing loss in February 1989 and 
stated that he began experiencing symptoms between 1969 and 
1970.  Similarly, when requesting that his claim be reopened 
in August 2007, he stated that he began experiencing hearing 
impairment in service.  

Here, the Board acknowledges that from 1989 to 2011, the 
Veteran has consistently maintained that he began 
experiencing hearing impairment in service.  In addition to 
his receipt of the CAR, he has identified a specific 
instance where he was subject to significant military noise 
exposure.  His service separation examination confirms that 
his hearing acuity changed during service.  Thus, the Board 
finds the Veteran credible and affords his testimony 
substantial weight despite the negative nexus finding of the 
VA audiologist in January 2011.  Therefore, given the 
competent and credible evidence of continuity of 
symptomatology since service, the Board finds that service 
connection for hearing loss on a presumptive basis is 
warranted.  See 38 C.F.R. § 3.303(b); see also Walker, 708 
F.3d at 1338-40.

Finally, the Board finds that service connection for 
tinnitus has been established on a direct basis. 

In August 2007, the Veteran submitted a letter to VA 
describing "intermittent tinnitus since service" that had 
become constant.  Tinnitus was acknowledged by a private 
physician in a separate letter from August 2007.

In a March 2008 VA Form 21-4138, the Veteran stated that he 
began experiencing ringing in his ears after a mortar attack 
in 1969.  He explained further that the issue has progressed 
over time, resulting in a constant ringing noise.  The 
Veteran made similar statements about the progressive nature 
of the ringing in his ears in a letter from May 2009.

In addition, a VA audiologist opinion from January 2011 
concludes that "it is at least as likely as not that the 
veteran's current tinnitus is due to noise exposure."  The 
audiologist's opinion, based on a review of the Veteran's 
medical history, service duties, and physical examination, 
is competent, credible and afforded great weight.  Further, 
there is no negative opinion in the record concerning a 
relationship between the Veteran's tinnitus and in-service 
noise exposure.  As such, the Board finds that there is a 
nexus connecting the Veteran's current tinnitus disability 
to in-service noise exposure, and service connection on a 
direct basis is warranted.  See 38 C.F.R. § 3.303(d); see 
also Shedden, 381 F.3d 1163.


ORDER

Service connection for bilateral sensorineural hearing loss 
is granted.

Service connection for tinnitus is granted.


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


 Department of Veterans Affairs