Citation Nr: 1333758 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-33 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at a February 2013 Travel Board hearing. The hearing transcript is of record. Although the RO has determined that new and material evidence has not been submitted to reopen the claim for service connection for bilateral hearing loss, the Board must determine on its own whether new and material evidence has been submitted to reopen these claims. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). FINDINGS OF FACT 1. In an unappealed May 1981 rating decision, the RO denied service connection for bilateral hearing loss, based on the finding that there was no evidence of hearing loss at the time of the Veteran's entrance onto active duty, during active duty, or at the time of the Veteran's discharge. 2. The evidence associated with the claims file subsequent to the May 1981 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 3. Bilateral hearing loss was not present in service or for many years thereafter, and is not etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2013). 2. Bilateral hearing loss was not incurred in or aggravated by active military service and service incurrence may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 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) defined 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; and (3) that the claimant is expected to provide. 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 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). VCAA notice in a new and material evidence claim (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis for which the prior claim was denied. Id. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board notes that the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 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"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (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). The Board has determined that new and material evidence has been submitted to reopen the Veteran's claim for service connection for bilateral hearing loss. Therefore, no further notice or development is needed to assist the Veteran in substantiating this aspect of his claim. The record reflects that in September 2006, prior to the initial adjudication of the claims, the Veteran was provided with the notice required under § 5103. The Board notes that, even though the letter requested a response within 60 days, it also expressly notified the Veteran that he had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b) (evidence must be received by the Secretary within one year from the date notice is sent). The Veteran was given the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) in the December 2006 and a subsequently submitted September 2009 letter. VA must also make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). That 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) (2013). VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that the assistance would aid in substantiating the claim. The Board notes that all pertinent evidence has been obtained in this case and the Veteran has been given an appropriate VA examination for his bilateral hearing loss, left ankle, bilateral knee and bilateral thumb disabilities. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the denied claims. The Board is also unaware of any such evidence. In sum, the Board concludes that any errors in the notice and the development of the claim by the originating agency were not prejudicial to the Veteran. Claim to Reopen As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence 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 submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. Analysis The Veteran's claim for service connection for bilateral hearing loss was originally denied in a May 1981 RO rating decision, based on a finding that there was no evidence during active duty or at the time of the Veteran's discharge of hearing loss. The Veteran did not file an appeal and the decision became final. In February 2009, the Veteran filed a new application to reopen his previously denied claim. The evidence added to the record since the last final denial includes VA outpatient treatment records and the report of a VA audiological examination conducted in September 2009, showing that the Veteran was diagnosed with bilateral hearing loss. This new evidence is not cumulative or redundant of the evidence previously of record; it is also relates to an unestablished fact necessary to substantiate the claim, i.e., that the Veteran has current bilateral hearing loss, which is etiologically related to service. Moreover, when combined with the Veteran's reports of hearing loss since service; this evidence is sufficiently supportive of the claim to raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been received and the claim of entitlement to service connection for bilateral hearing loss is reopened. 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 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303 (2013). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296 (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. Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303(b) (2013). The theory of continuity of symptomatology can be used only in cases involving those disabilities explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C.A. 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay 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 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1337 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Wilson v. Derwinski, 2 Vet. App. 16 (1991). Once evidence is determined to be competent, the Board must then determine whether that competent evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994) 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. 38 C.F.R. § 3.303(d) (2013). 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) (2013). However, that does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Impaired hearing is considered a disability when the auditory threshold for 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 those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an organic disease of the nervous system. 38 C.F.R. § 3.309(a) (2013). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Accordingly, the Veteran's claims of continuity of symptomatology have been considered and addressed. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, where hearing loss that is an organic disease of the nervous system manifested to a compensable degree within one year following separation from service, service connection shall be granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that he has bilateral hearing loss related to noise exposure during active service. Service treatment records show a shift in the Veteran's hearing from the time he entered service to his discharge, but they are negative for any evidence of hearing loss for VA compensation purposes. However, the Board has also considered the Veteran's statements concerning in-service noise exposure and his documented duty assignments, to include the Veteran's military occupational specialty listed as Light Weapons Infantryman, noted on his Form DD-214. Therefore, in giving due consideration to the places, types, and circumstances of his service, noise exposure in service is conceded. 38 U.S.C.A. § 1154(a) (2013). In-service incurrence of injury is therefore met as to acoustic trauma. The Board also notes that there is no dispute that the Veteran is competent to report hearing loss symptoms he experiences because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). The post-service medical records show that the Veteran was first diagnosed with hearing loss during VA outpatient treatment in February 2004VA. At that time, he complained of slow, progressive hearing problems, secondary to one year of military noise exposure without the usage of hearing protection. However, he also reported 35 years of occupational noise exposure from working with scrap metal. The Veteran was afforded a VA audiological examination in September 2009. He complained of hearing loss which he reported began during military service, when he was exposed to canon fire, explosives, and demolitions while performing security activities, without hearing protection. He also reported post-service occupational noise exposure as a supervisor for Scrap All, Inc. The Veteran was diagnosed with moderate to severe bilateral sensorineural hearing loss. The examiner, an audiologist, opined that it is less likely as not that the Veteran's bilateral hearing loss was caused by or a result of military noise exposure. Her rationale was that the Veteran had normal hearing at entrance and discharge from service, and that a 2005 study on the Military and Noise Exposure by the Institute of Medicine indicated that there was no scientific evidence to support delayed onset of noise induced hearing loss. The Veteran's report of a continuity of hearing loss since service is competent evidence of a continuity of symptomatology. However, he first reported that continuity years after service. Furthermore, the first contemporaneous evidence of hearing loss in the record is from 2004 VA treatment records, more than 30 years after his discharge from active service. Furthermore, the September 2009 VA audiologist who examined the Veteran and reviewed the claims folder has opined that the Veteran's hearing loss is not related to service. There is no contrary medical opinion of record. The Board finds that the September 2009 VA opinion was based on a full review of the record. Furthermore, the examiner considered the Veteran's history of noise exposure and onset of hearing loss in service, with his reports of a continuity of symptomatology since that time. The opinion is complete and sufficient upon which to base a decision with respect to the Veteran's claim for service connection for bilateral hearing loss. Barr v. Nicholson, 21 Vet. App. 303 (2007). It would require medical expertise to say that the current hearing loss identified long after service, is the result of in-service noise exposure. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his hearing loss. 38 C.F.R. § 3.159(a)(1),(2) (2013). The Board finds that the examiner's opinion is more persuasive than the Veteran's assertions of continuity of symptomatology. Accordingly, the Board concludes that the preponderance of the evidence is against this claim and service connection for bilateral hearing loss on a direct basis is not in order. The Board also notes that without clinical evidence of manifestation of hearing loss to a compensable degree within a year after discharge, presumptive service connection also is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs