Citation Nr: 1334008	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  11-16 709	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for right ear hearing loss.

3.  Entitlement to a compensable disability rating for service-connected left ear hearing loss.


REPRESENTATION

Appellant represented by:	Fleet Reserve Association


ATTORNEY FOR THE BOARD

J. Young, Associate Counsel

INTRODUCTION

The Veteran had active service from December 1961 to April 1974 and May 1974 through May 1992. 

These matters come before the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the Department of Veterans Affairs (VA) in St. Petersburg, Florida, Regional Office (RO) which granted service connection for tinnitus, continued a 0 percent disability rating for the Veteran's service-connected left ear hearing loss, and reopened, but denied, the Veteran's claim for service connection for right ear hearing loss.

The claim for entitlement to a compensable disability rating for service-connected left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  A September 1992 rating decision denied the Veteran's claim for entitlement to service connection for right ear hearing loss; the Veteran did not appeal and the decision, as it relates to his right hear hearing loss, became final.

2.  Evidence received since September 1992 is new and material as it addresses an unestablished fact necessary to substantiate the claim and raises the reasonable possibility of substantiating the claim.

3.  The Veteran's current right ear hearing loss is not etiologically related to acoustic trauma during active duty service.


CONCLUSIONS OF LAW

1.  The September 1992 rating decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013).

2.  The criteria for reopening the previously denied claim for entitlement to service connection for right ear hearing loss have been met.  38 U.S.C.A. § 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a) (2013).

3. The criteria for service connection for a right ear hearing loss disability have not been met.  38. U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013)


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  More specific notice is required in claims to reopen.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).

The duty to notify was met through notice provided to the Veteran in March 2009. 

With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), service personnel records, VA examinations and treatment records, and the statements of the Veteran and his representative in support of his claims.  A November 2008 VA outpatient clinic consult report indicates the Veteran was to return to the clinic for a hearing aid fitting and orientation.  The Board acknowledges that the record from the Veteran's VA hearing aid fitting is not of record, but the Board finds that adjudicating the claim without that record would not prejudice the Veteran.  The Board concedes that the Veteran has right ear hearing loss.  The pertinent issue before the Board regards the etiology of his right ear hearing loss.  There is no reason to believe that the hearing aid fitting record would contain any medical opinion on the issue.  Thus, record with regard to a hearing aid fitting is not probative of the issue at hand.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

The Veteran was afforded a VA examination/medical opinion in April 2009.  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).  The Board finds that the VA examination/opinion obtained in this case is adequate, as it is predicated on a reading of the pertinent medical records, an examination of the Veteran, consideration of the Veteran's statements, and diagnostic testing.  The report of the VA examination provides findings relevant to the issue and provides a complete rationale for the opinion 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 issue on appeal has been met.  38 C.F.R. § 3.159(c) (4). 

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims.

II.  Legal Criteria

New and Material Evidence

In general, RO decisions that are not timely appealed are final.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200.  An exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. 

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.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end, 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 neither required nor permitted.  Id. at 1384.  See also Butler v. Brown, 9 Vet. App. 167, 171 (1996).

"New" means evidence not previously submitted to agency decision makers and "material" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.  In determining whether evidence is new and material, the "credibility of the evidence is to be presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is new, but is not material the inquiry ends and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  Service connection may also be granted for any injury or disease diagnosed after service, when the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, such as hearing loss, a claimant may establish the second and third elements by demonstrating continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) 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 Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period.  38 C.F.R. § 3.307(b) ; Oris v. Derwinski, 2 Vet. App. 95, 96 (1992).  A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis.  38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). 

An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis.  A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993).  The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address."  Bielby v. Brown, 7 Vet. App. 260, 266 (1994).

Competent medical evidence includes evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau, 492 F.3d at 1372.  

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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 .

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

III.  Claim to Reopen

In a September 1992 rating decision, the RO denied the Veteran's claim for entitlement to service connection for right ear hearing loss.  The Veteran was provided notice of that decision, but he did not appeal.  

At the time of the September 1992 denial, the evidence of record included the Veteran's service treatment records (STRs), VA treatment records, statements from the Veteran, and VA examinations.  

The Veteran's claim was denied in September 1992 because his hearing acuity in his right ear was normal during service and audio testing at the time of his initial claim did not show right ear hearing loss meeting VA standards. 

Evidence added to the record since September 1992 includes additional statements from the Veteran and his representative, a November 2008 VA audiological evaluation, and an April 2009 VA audiological examination.

The November 2008 VA audiological evaluation reveals the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
35
60
85
105+
LEFT
25
35
45
70
70



The April 2009 VA audiological examination report, signed in July 2009, reveals mild to moderate, right ear, sensorineural hearing loss.  The Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
35
55
65
LEFT
10
10
35
70
80

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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.

This evidence is both "new" and "material," in that it was previously unseen, it relates to an unestablished fact necessary to substantiate the claim; that is, whether the Veteran has a right ear hearing loss disability, and it raises a reasonable possibility of substantiating the claim.  Thus, the claim is reopened, and, to this extent only, the appeal is granted.  

Having reopened the Veteran's claim, the Board must now determine whether the reopened claim of entitlement to service connection for right ear hearing loss may be granted on the merits, de novo.  The Veteran will not be prejudiced by the Board's action in reconsidering the matter as the RO previously reopened and reconsidered the claim on the merits most recently in a March 2011 Statement of the Case.  Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Cf. Hickson v. Shinseki, 23 Vet. App. 394 (2010).

The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for his right ear hearing loss disability.  

One element of a claim for service connection is there must be evidence of a current disability.  As detailed above, the Veteran is currently diagnosed with right ear hearing loss at a level meeting VA standards and the Board has conceded that the Veteran has a right ear hearing loss disability.

The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease.  A retirement examination report from January 1992 revealed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
15
LEFT
5
15
10
45
60

In the accompanying January 1992 Report of Medical History, the Veteran denied a history of hearing loss.  While the above audiological findings reveal normal right ear hearing acuity for VA purposes, the Veteran avers he was exposed to acoustic trauma during his military service due to exposure to gunfire aboard Navy vessels.  STRs indicate that in July 1987 the Veteran was issued hearing protection and he stated at the time that he had exposure to gunfire.  A DD-214 Form and STRs indicate that the Veteran served aboard a Navy vessel.  The Board concedes the Veteran had some exposure to acoustic trauma during service, consistent with his service aboard a naval vessel. Thus, the second requirement to establish service connection has been met.

The final element for service connection is a competent and credible nexus between an in-service injury or disease and the current disability.  The Board finds, for reasons noted below, that this element has not been met.

In a VA audiological examination in July 1992, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
0
20
25
LEFT
0
10
10
55
65

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear.  Which revealed normal hearing acuity under VA standards. 

When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  While the regulations do not necessarily preclude service connection when hearing loss first meets the requirements after service, the regulations also do not hold that service connection is warranted, or mandatory, for hearing loss disability in the absence of a competent credible clinical nexus opinion or credible continuity of symptomatology from service.

While November 2008 and April 2009 audiological evaluations reveal right ear hearing loss under VA standards, the only medical opinion of record weighs against the Veteran's claim.  The April 2009 VA examiner opined that the Veteran's right ear hearing loss is less likely as not (less than 50 percent probability) caused by or a result of military noise exposure.  The examiner's rationale was that the Veteran does have high frequency hearing loss, but his hearing was normal throughout military service in his right ear, so right ear hearing loss is more likely a post service occurrence.  The Veteran's left ear hearing loss began in service and the configuration of which was consistent with noise exposure.  The Board notes that service connection has already been granted for the left ear.  

Regarding continuity of symptomology, the Board finds that any statement by the Veteran that he has had right ear hearing loss since service is outweighed when considered with the record as a whole.  The Veteran was found to have normal right ear hearing on separation examination, and the Veteran denied hearing loss on the accompanying Report of Medical History for retirement.  Therefore, any current statement that the Veteran noticed hearing loss in his right ear during service is less than credible.  Also, a July 1992 VA examination revealed normal hearing in his right ear.  In an April 2009 statement, the Veteran indicated that he has had difficulty hearing for years.  

The first audiological test to reveal right ear hearing loss meeting VA standards is from November 2008, more than 16 years after the Veteran's service and the Veteran indicated that he did not seek treatment for his right ear hearing loss until that time.  While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible).  See also Jandreau, 492 F. 3d 1372.  

The Board finds that the Veteran's statements documented in his STRs in which he consistently denied a history of hearing loss, including a July 1987 report and a January 1992 Report of Medical History, contemporaneous to service and treatment, are more credible than those made later for compensation purposes.  See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony).  

In the present claim, there is no clinical opinion, or credible continuity of symptomatology, which supports a causal relationship between a right ear hearing loss disability and active service.  The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., hearing difficulty).  To this extent, the Board finds that the Veteran is competent to report that he has current hearing loss.  However, the Veteran's assertions that he has had right ear hearing loss since service are inconsistent with the medical evidence.  

The Veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation in the present case.  Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the cause of right ear hearing loss more than 16 years after the last possible acoustic trauma in service.  The Board finds that such an etiology finding falls outside the realm of common knowledge of a lay person.  Id; see also Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011).

In the present claim, there is no clinical opinion which supports a causal relationship between the Veteran's current right ear hearing loss disability and active service, and no credible evidence of continuity of symptoms.  Thus, service connection is not warranted.

The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 , and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application.  Gilbert, 1 Vet. App. at 54-56.


ORDER

New and material evidence has been submitted to reopen the claim for entitlement to service connection for right ear hearing loss, and the claim is reopened.  

Entitlement to service connection for right ear hearing loss is denied.

REMAND

Regrettably, a remand is necessary for further evidentiary development.  The most recent VA examination evaluating the Veteran's left ear hearing loss was performed in April 2009, more than four years ago and in the Veteran's February 2010 notice of disagreement, the Veteran indicates that his hearing has worsened.  The Veteran stated that his hearing has gotten worse over the years and he further states that he has to have his left hearing aid "almost as high as it goes" in order to hear television programs.  As such, the Board finds that a more contemporaneous VA examination is appropriate prior to a final adjudication of the Veteran's claim for an increased disability rating.  See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted).  Upon remand, the Veteran should be afforded a VA audiological examination.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and ask him for the names of all VA and non-VA treatment providers that the Veteran has seen for his left ear hearing loss. 

2.  After obtaining the appropriate release of information forms where necessary, procure any pertinent treatment records.

3.  Then, schedule the Veteran for a VA audiological examination by an audiologist to determine the current severity of his service-connected left ear hearing loss.  

The claims folder, to include Virtual VA and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination.  The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. 

All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  The findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz must be numerically reported, and speech recognition percentage results derived using the Maryland CNC word list.  

The examiner must specifically address the effect of the Veteran's hearing loss on his activities of daily living, including work and social activities.  See Martinak, 21 Vet. App. 447.  If speech discrimination testing is inappropriate, the examiner should indicate the reason for which such was not performed.  

4.  Thereafter, the Veteran's claims should be readjudicated.  If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative, if any.  An appropriate period of time should be allowed for response.  

Thereafter, this claim should be returned to this Board for further appellate review, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs