Citation Nr: 1330823 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 12-25 859 ) 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. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. The Veteran had service in the Oklahoma Army National Guard from June 1953 to May 1995, with periods of active duty for training and inactive duty training. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2012 of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, determined that new and material evidence had not been received to reopen a claim for entitlement to service connection for bilateral hearing loss. By this decision, the RO also denied service connection for tinnitus. In August 2013, the Veteran appeared at a Board videoconference hearing before a Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. In a September 2012 statement of the case, the RO addressed the issue of entitlement to service connection for tinnitus on a new and material basis. However, service connection for tinnitus was denied in the March 2012 rating decision and that denial is not final. Therefore, the Board will address the issue of entitlement to service connection for tinnitus on a de novo basis. FINDINGS OF FACT 1. The RO denied service connection for a bilateral hearing loss in July 1995, and the Veteran did not appeal. That decision is now final. 2. Evidence submitted since then includes evidence that is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's bilateral hearing loss had it onset in service. 4. The Veteran's tinnitus had it onset in service. CONCLUSIONS OF LAW 1. The criteria for reopening a claim for entitlement for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C.A §§ 101(24), 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist In this decision, the Board reopens the Veteran's previously denied claim for entitlement to service connection for bilateral hearing loss, and grants service connection for bilateral hearing loss and for tinnitus. As this represents a complete grant of benefits sought on appeal, no discussion of VA's duty to notify or assist is necessary. I. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. 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 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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). In determining if new and material evidence has been submitted, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curium). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), at 118. Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The RO denied service connection for bilateral hearing loss in July 1995. There was no evidence received within one year of the July 1995 RO decision. See 38 C.F.R. § 3.156(b); Bond. The July 1995 RO decision was not appealed and is final. 38 U.S.C.A. § 7105. The evidence considered at the time of the July 1995 RO decision included the Veteran's available service treatment records; post-service private treatment records; and the Veteran's own statements. The RO denied service connection for bilateral hearing loss on the basis that such condition was not caused by acoustic trauma during the Veteran's periods of inactive duty training. The RO indicated that the Veteran's service treatment records showed no findings of acoustic trauma. The RO also reported that reports from private physicians were negative for evidence of acoustic trauma while the Veteran was on inactive duty training. The evidence received since the July 1995 RO decision includes private treatment records; a VA examination report; lay statements; and statements and testimony from the Veteran. At the August 2013 Board hearing, the Veteran testified that his bilateral hearing loss and tinnitus were the result of acoustic trauma he sustained while serving in the Oklahoma Army National Guard from 1953 to 1995. The Veteran maintained that he served on active duty for training for at least two weeks every year. He stated that when he entered the service in 1953, he used heavy weapons, including machine guns and 325 rocket launchers. He indicated that when he went to his next unit, the 279th Infantry, he also used heavy weapons such as machine guns, 325 rocket launchers, and 105 recoilless rifles. He specifically stated that he fired those weapons. The Veteran indicated that his ears would ring when he came off the firing ranges. He reported that in his later years in the Oklahoma Army National Guard, he was exposed to explosions from simulators and hand grenades. The Veteran testified that he was also exposed to acoustic trauma from working on mechanical vehicles such as 2 1/2-ton vehicles, 3/4-ton vehicles, and, 1/4-ton vehicles. He stated that he served as a range officer from 1978 to 1995 and that he was exposed to machine guns and small arms fire. He reported that he did not wear hearing protection until the 1990s. The Veteran stated that he was also exposed to noise in his civilian occupation because he was a mechanic and worked on all wheel vehicles. He indicated, however, that the noise he was exposed to during his active duty for training, which was at least two weeks every year, was significantly louder than the noise he was exposed to in his civilian occupations. The Veteran indicated that he currently had ringing in the ears, intermittently, as well as bilateral hearing loss. He reported that nothing in his civilian job caused his ears to ring, but that being around heavy equipment and weapons did cause his ears to ring when he was performing his active duty for training activities. In the evidence available at the time of the July 1995 RO decision, there was no specific evidence relating the Veteran's bilateral hearing loss to his periods of active duty for training/and or inactive duty training in the Oklahoma Army National Guard. At the August 2013 Board hearing, the Veteran specifically testified that he served on two week periods of active duty for training each year and that he was exposed to acoustic trauma from working on heavy equipment and track equipment, as well as from weapons, including machine guns. He indicated that his exposure to heavy equipment and weapons caused his ears to ring when he was performing his active duty for training activities. The Veteran is competent to report that he had hearing problems, as well as ringing in the ears following exposure to heavy equipment and weapons, during his periods of active duty for training, and hearing loss and ringing in the ears since his periods of service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, the hearing testimony will be considered credible for the purposes of determining whether new and material evidence has been submitted. The Board finds that the August 2013 Board hearing testimony is evidence that is both new and material because the claim was previously denied, at least in part, on the basis that the evidence did not show current bilateral hearing loss stemming from the Veteran's periods of active service. Therefore, the Board finds that such evidence is not cumulative or redundant, relates to an unestablished fact necessary to substantiate his claim, and raises a reasonable possibility of substantiating the claim. The Board concludes that evidence submitted since the July 1995 RO decision is new and material, and reopening the claim is warranted. II. 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, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," such as sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101(24). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Impaired hearing will be considered to be a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. One requirement for service connection is the current existence of the claimed disability. With regard to hearing loss, 38 C.F.R. § 3.385 defines what constitutes the current existence of a hearing loss disability. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Where service medical records are not available, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran contends that his bilateral hearing loss and tinnitus are related to his active service. He specifically maintains that he was exposed to noise from heavy equipment and from weapons, including machine guns and rocket launchers, during his periods of active duty for training in the Oklahoma Army National Guard. He also reports that he served as a range officer from 1978 to 1995 and that he was exposed to noise from machine guns and small arms fire. He states that his ears would ring after being exposed to weapons during his periods of active duty for training. The Veteran indicates that the noise he was exposed to during his yearly two-week periods of active duty for training was significantly louder than the noise he was exposed to in his civilian occupations. The Veteran essentially reports that his bilateral hearing loss and tinnitus were first experienced during his periods of active duty for training and have continued since service. The Veteran had service in the Oklahoma Army National Guard from June 1953 to May 1995, with periods of active duty for training and inactive duty training. The Veteran's service treatment records include numerous examination reports and audiological evaluation reports that show a hearing loss disability in both ears as defined by 38 C.F.R. § 3.385. There are multiple treatment reports that indicate that the Veteran had bilateral hearing loss. Such records do not show complaints, findings, or diagnoses of tinnitus. Private treatment reports dated from April 1992 to August 2011 show that the Veteran was treated for bilateral hearing loss and for tinnitus. There are several statements from physicians that discuss the Veteran's civilian noise exposure. An August 1992 private treatment report from R. E. Fox, D.O., indicated that he had determined that the Veteran had a hearing deficit, bilaterally. Dr. Fox reported that the Veteran currently worked at Camp Gruber in Oklahoma as a mechanic. It was noted that the Veteran has worked with heavy duty equipment and diesel equipment. Dr. Fox commented that he felt that the Veteran's (bilateral) hearing deficit was occupationally acquired at the present time. A January 1993 private treatment report from R. B. Dawson, M.D., and associated with the Veteran's service treatment records, indicated that the Veteran complained of a loss of hearing in both ears. The Veteran stated that he felt that this hearing loss had become more pronounced recently and that he had difficulty hearing over the phone and with background noise. He maintained that the cause of his hearing loss was exposure to loud equipment and shop noise. It was noted that the Veteran had been employed by the Department of the Army as a heavy mobile equipment repairer and that he had performed those duties for twenty-four years. The Veteran indicated that he was exposed to noise from road graders, conveyors, bulldozers, compressors, hammers, and welding equipment, etc. He also stated that he was exposed to noise from tank carriers, trucks, rock crushers, scrapers, and graders. The Veteran reported that he had no ringing in the ears except after driving. He stated that the ringing in his ears would come and go. Dr. Dawson indicated that the Veteran had worked under the excepted civil service from May 1968 until the present. It was noted that the Veteran had been in the National Guard since 1953 and that he had worked on range control. Dr. Dawson reported test results that were indicative of a hearing loss disability in both ears as defined by 38 C.F.R. § 3.385. Dr. Dawson commented that based on the Veteran's history, physical examination, audiometric findings, and a review of records, he found that the Veteran's hearing loss was probably noise induced. A May 1994 statement from Dr. Dawson also related test results that were indicative of a hearing loss disability in both ears as defined by 38 C.F.R. § 3.385. Dr. Dawson reported that his impression was a continuation of the problem noted in his January 1993 report. Dr. Dawson stated that he was surprised that the Veteran had not been taken out of a noise environment. Dr. Dawson indicated that the Veteran's hearing had continued to deteriorate and that he would suggest that he be removed from any noise exposure at work. A July 1994 Statement of Accepted Facts, apparently pursuant to a workers' compensation claim, and signed by a claims examiner, indicated that the Veteran was employed by the Department of the Army as a heavy mobile equipment repairer. The claims examiner indicated that the Veteran had worked for the Department of the Army since 1968, and that his duties included maintenance on heavy duty mobile equipment and vehicles such as road graders, conveyors, bulldozers, and compressors, etc. It was noted that the Veteran also worked with small arms equipment using various hammers, welding equipment, and spray paint equipment. The claims examiner stated that the Veteran was issued ear muff style protection and fitted with ear plugs in May 1988. The claims examiner reported that the Veteran was regularly exposed to noise from equipment such as tank carriers, 2 1/2-ton trucks, 20-ton trucks, generators, rock crushers, scrapers, graders, dump trucks, bulldozers, cranes, and combat vehicles. The claims examiner stated that it was assumed that such equipment produced hazardous noise levels in excess of 88 decibels four to eight hours a day, five days a week. It was noted that the Veteran continued to work in the same environment. The claims examiner indicated that the Veteran had a prior bilateral sensorineural hearing loss that was accepted as work related, and that a scheduled award for 36 percent permanent partial impairment was awarded. An August 1994 report from D. H. Atwell, M.D., apparently pursuant to a workers' compensation claim, noted that the Veteran reported that the date of his injury due to noise exposure was June 1991. Dr. Atwell indicated that the Veteran stated that he had no history of hearing loss, but that audiograms in 1990 showed a hearing loss. Dr. Atwell indicated that the Veteran gave a history of being exposed to road graters, bulldozers, rock crushers, and tank carriers which produce noise levels in excess of 88 decibels. Dr. Atwell reported audiological evaluation results that were indicative of a hearing loss disability in both ears as defined by 38 C.F.R. § 3.385. The diagnosis was sensorineural hearing loss, bilateral, possibly noise induced. An August 2011 audiological report from Better Sound Hearing indicated results indicative of a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385. A June 2013 lay statement from M. B., indicated that he worked with the Veteran until his retirement in May 1995. M. B., stated that during that period, they were both full time employee's of the Oklahoma Army National Guard and members of the Guard, which was a requirement for employment. He indicated that during that period, they spent much of their time on the firing range for armored vehicles such as M60 tanks and combat engineer vehicles. M. B., further reported that he and the Veteran spent long hours on the firing range with 105 mm and 155 mm caliber guns, as well as 30 and 50 caliber machine guns. He stated that they did not use hearing protection and that, when not firing, their assignment was to perform maintenance on armed vehicles while they were still being fired on the range. He indicated that the Veteran seemed to suffer more hearing damage than average. M. B., noted that during their technician service, and when not on duty, the Veteran became harder to communicate with due to his hearing loss. M. B., stated that there was no doubt in his mind that the Veteran's hearing loss was due to the extreme noise exposure during his active duty periods. A June 2013 lay statement from D. E., indicated that he served with the Veteran in the Oklahoma Army National Guard. He stated that for years they attended drills together, most of which involved weapons firing with no ear protection. He indicated that in addition to the firing range, heavy equipment operators were exposed to very loud noise levels. D. E., stated that the Veteran also worked in that area and suffered constant noise exposure. D. E., maintained that the Veteran suffered sustained hearing loss during his service to the military. A June 2013 lay statement from J. R., indicated that he had worked with the Veteran since 1973 when they were both in the 245th Engineers, with the Oklahoma Army National Guard, and again at the Camp Gruber Training Center from 1986 through 2004. J. R. stated that, during a large part of that time, they were not provided with hearing protection for work stations or when they spent hours on the weapons ranges. He reported that there were times when the Veteran would spend twelve to fourteen hours on the firing line when training was conducted for the M1 carbine, and with M16 rifles. A June 2013 lay statement from R. H., indicated that the Veteran was his platoon sergeant in 1963 when he was in the infantry in the Oklahoma Army National Guard. He stated that during that time, their primary weapons were the M1 rifle, the 30 caliber air cooled machine gun, 81 mm mortars, 3.5 rocket launchers, and 105 mm recoilless rifles mounted on jeeps. R. H. reported that during his period of service, especially during annual training, they were furnished with grenade simulators, which caused an extremely loud bang and a flash. He indicated that those who served in the heavy weapons platoon were subjected to extremely loud noise during firing and field exercises. The medical evidence shows that the Veteran is currently diagnosed with bilateral hearing loss and tinnitus. The Veteran's service treatment records include multiple examination reports and audiological evaluation reports that show bilateral hearing loss pursuant to 38 C.F.R. § 3.385. The evidence of record also includes reports from private physicians that relate the Veteran's bilateral hearing loss to his civilian occupation with the Department of the Army. The physicians did not specifically address any noise exposure during the Veteran's service in the Oklahoma Army National Guard. There are also lay statements of record from individuals who served with the Veteran in the Oklahoma Army National Guard and that indicate that the Veteran was exposed to acoustic trauma from weapons and heavy equipment. The Veteran is competent to report in-service hearing problems and tinnitus, continuous hearing loss and tinnitus symptomatology since service, and current symptoms that form the basis for diagnosis of disability. The Board finds that the Veteran's reports of noise exposure during his periods of active duty for training to be credible. See also Jandreau v. Nicholson, 492 F.3d 1372 (2007). Resolving any doubt in the Veteran's favor, the Veteran has bilateral hearing loss and tinnitus that, at least in part, had their onset during his periods of service. Service connection for bilateral hearing loss and tinnitus is warranted. ORDER New and material evidence having been received, the petition to reopen the claim for entitlement to basic eligibility for VA benefits has been is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs