Citation Nr: 1334052	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  12-28 791	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral hearing loss disability.  

2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus.  

3. Entitlement to service connection for bilateral hearing loss disability.

4. Entitlement to service connection for tinnitus.


REPRESENTATION

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




ATTORNEY FOR THE BOARD

 R. Chakraborty, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from April 28, 1972 to May 18, 1973 and from July 20, 1974 to August 3, 1974. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, in which the RO determined that new and material evidence sufficient to reopen a previously denied claim for service connection for bilateral hearing loss disability and tinnitus had been received.  The RO reopened the previously denied claims, but denied the underlying de novo issues of entitlement to service connection for a bilateral hearing loss disability and tinnitus.  

Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  The Board has reviewed both the paper and electronic claims files. 


FINDINGS OF FACT

1.  The Veteran did not file a Notice of Disagreement within one year being notified of a January 2009 rating decision that denied service connection for a bilateral hearing loss disability and tinnitus. 

2. Evidence received since the January 2009 rating decision raises a reasonable possibility of substantiating the claims of service connection for a bilateral hearing loss disability and tinnitus.

3. The weight of the evidence is against a finding that the Veteran's bilateral hearing loss disability is etiologically related to active service. 

4. The weight of the evidence is against a finding that the Veteran's tinnitus is etiologically related to active service.


CONCLUSIONS OF LAW

1. The January 2009 RO decision that denied the Veteran's claims of service connection for a bilateral hearing loss disability and tinnitus is final. 38 U.S.C.A 
§ 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009).

2. New and material evidence sufficient to reopen the claims of service connection for a bilateral hearing loss disability and tinnitus has been received. 38 U.S.C.A. 
§ 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

3. A bilateral hearing loss disability was not incurred in service, and sensorineural hearing loss may not be presumed to have been incurred therein.  38 U.S.C.A. 
§§ 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).

4. Tinnitus was not incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).  

As to the claims for whether new and material evidence has been received to reopen the claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus, the Board is reopening the Veteran's claims.  Therefore, any defect in the notice letter concerning the evidence needed to reopen these claims, or, indeed, any deficiency in VA's compliance with its duty to assist the Veteran, cannot be prejudicial to him.  Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005); Conway v.Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.  See also Kent v. Nicholson, 20 Vet. App. 1, 10 (2006).

As to the claims for service connection, in correspondence dated in December 2010, prior to the January 2011 rating decision, the RO satisfied its duty to notify the Veteran for the bilateral hearing loss disability claim under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA).  Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  That letter also notified the Veteran of the process by which disability ratings and effective dates are established.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Although VCAA notice was not provided to the Veteran by the RO regarding tinnitus, the Veteran was able to perfect his appeal to the Board.  Therefore, there is no prejudice to the Veteran.  See Mayfield v. Nicholson, 19 Vet. App. 103, 122 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013).  The Veteran's service treatment records and a private medical opinion are in the claims folder.  Furthermore, the Veteran was provided with a VA examination.  This examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.  Additionally, the Veteran declined to present testimony in support of his claims.  Thus, the duties to notify and assist have been met.

Claim to Reopen

In a January 2009 rating decision, the RO denied service connection for a bilateral hearing loss disability and tinnitus.  The Veteran was notified of that decision and provided with notice of his appellate rights by letter dated in January 2009.  However, the record does not reflect that he filed a notice of disagreement within one year of this notification.  Accordingly, the January 2009 denial is final.  See 38 U.S.C.A § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009).

The previously disallowed claim of entitlement to service connection for a bilateral hearing loss disability and tinnitus may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108 (West 2002); Manio v. Derwinski, 1 Vet. App. 140 (1991).  The Veteran filed his application to reopen his claim in November 2010.  Under the applicable provisions, 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) (2013).  In this regard, in the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans' Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening.  Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Id.

The relevant evidence before the VA at the time of the prior final decision consisted of service treatment records (STRs).  

In denying the claim for service connection in January 2009, the RO indicated that no evidence had been received to substantiate the claims for hearing loss disability and tinnitus.  The RO also stated that evidence from the VA examination could not be considered because the Veteran failed to report for the examination. 

Evidence received since the final rating decision  includes a private medical opinion and a VA examination report.  They both provide medical evidence that the Veteran has current disabilities.  Moreover, the private opinion suggests a link between these disabilities and his military service.  

The Board finds that the newly submitted evidence is sufficient to reopen the previously disallowed claims.  Specifically, the lack of medical evidence linking current disability to service was the basis for denial of service connection in January 2009.  For the limited purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Therefore, the Board finds that new and material evidence has been received, as it was not previously of record and raises a reasonable possibility of substantiating the claims of service connection for bilateral hearing loss disability and tinnitus, and the claims are reopened.  Shade v. Shinseki, 24 Vet. App. 110, 119-21 (2010). 


Service connection claims

The Veteran essentially contends that he has a hearing loss disability and tinnitus as a result of his military service, and that their onset is related to in-service acoustic trauma.

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).

In order to establish service connection for the claimed disorder, there must be (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) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 166 (Fed. Cir. 2004).  

In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2013).

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court); however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385 (2013). 

Service connection for sensorineural hearing loss may be established based on a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  See 38 U.S.C.A. 
§§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013); see also VA Under Secretary for Health letter dated October 4, 1995 (it is appropriate for VA to consider sensorineural hearing loss as an organic disease of the nervous system and, therefore, a presumptive disability).

The record shows that the Veteran currently has bilateral hearing loss for VA compensation purposes, and tinnitus.  The audiometric findings in the January 2011 VA examination were as follows:


HERTZ

500
1000
2000
3000
4000
LEFT
20
25
40
45
85
RIGHT
20
25
30
55
75

The Maryland CNC Word List speech recognition scores were 96 percent in the left ear and 94 percent in the right ear.  The VA examiner found that sensorineural hearing loss was present, and that the degree of loss was normal to severe.  The examiner was unable to determine whether the tinnitus was associated with hearing loss without resorting to speculation.  However, he noted the Veteran's complaint of tinnitus, which the Veteran reported as beginning ten years ago (over 25 years after his separation from service), and which occurs once a week.  Shedden element one, medical evidence of a current disability, is therefore met for tinnitus and bilateral hearing loss disability. 

With respect to Shedden element two, medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, the Board will separately discuss disease and injury. 

With respect to disease, the service treatment records (STRs) do not indicate any treatment in-service for hearing loss or tinnitus, and the Veteran's entrance examination audiogram was within normal limits.  Additionally, there is no evidence of treatment for either hearing loss or tinnitus during service or within the one year presumptive period after service.  See 38 C.F.R. §§ 3.307, 3.309(a) (2013).  Therefore, Shedden element two is not met with respect to disease.
  
As to in-service injury, the Veteran served as a rifleman in service.  He submitted a letter received in October 2012 describing his role, indicating that he "was exposed to high explosives such as TNT, dynamite, M-14, M-16, 30 [c]aliber machine guns, 50 [c]aliber machine guns, motor rounds, and hand grenades ... [and] was also exposed to repetitive loud equipment such as tanks, helicopters, military transport vehicles and such."  The Veteran also remarked that he was not provided with hearing protection.  

The Board notes that the Veteran is competent to give evidence about what he experienced, and acoustic trauma and tinnitus are subject to lay observation.  See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  The Board finds that the Veteran was exposed to noise from weapons fire and military vehicles during service.  Therefore, Shedden element two is satisfied.  

With respect to crucial Shedden element three, nexus, the question presented, i.e., the relationship, if any, between the Veteran's current bilateral hearing loss and tinnitus, and his military service, is essentially medical in nature.  The Board is prohibited from exercising its own independent judgment to resolve medical questions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

As previously noted, the Veteran was provided with a VA examination in January 2011.  The examiner found that the hearing loss and tinnitus was less likely as not (less than 50/50 probability) caused by or a result of acoustic trauma.  He stated that the Veteran's entrance examination audiogram indicated normal hearing and that there was no report of tinnitus or hearing loss in the STRs.  The examiner acknowledged the Veteran's significant noise exposure in service as well as the Veteran's reported 35 year career driving a dump truck on construction sites.  The examiner noted that the Veteran reported the onset of tinnitus 25 years after service, and questioned the onset of symptoms given that they were not reported when another claim was filed in 1974.  Specifically, the examiner stated that the Veteran "was not able to correlate its onset to a specific incident during his tour of duty." 

In contrast, the Veteran submitted a private audiologist opinion dated in September 2011.  After obtaining a case history and performing audiologic testing (which indicated "mild to severe/profound sensorineural hearing loss, bilaterally"), the audiologist found "that it is more likely than not that Mr. [redacted]s hearing loss and tinnitus is related to his military noise exposure and it may have worsened as a civilian."  She opined that tinnitus was "at least as likely as not a symptom associated with the Veteran's hearing loss from military noise exposure."  She mentioned that the Veteran reported "having a dull feeling to his hearing and a little bit of buzzing after firing weapons." 

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

In assigning weight to the conflicting medical opinions of record, the Board affords more weight to the VA examination report than the private audiologist opinion.  In reaching the conclusion, the Board notes that it appears that the private audiologist considered an inaccurate history.  In this regard, while the private audiologist noted that the Veteran "drove a dump truck for two years," however, the Veteran stated in a letter received in October 2012 that he had been a truck driver "off and on for the last 35 years."  Moreover, the private examiner, while acknowledging a lack of treatment for hearing loss or examination at separation, fails to provide a rationale for how she reached her conclusion and does not attempt to reconcile her opinion with other statements from the Veteran detailing a decades long employment in truck driving.  In contrast to the private audiologist who appears to have considered only a 2 year history of truck driving, the VA examiner accurately noted this 35 year career in his report.  Thus, the Board finds that the VA examination report is in line with the evidence of record and is therefore of greater probative value.  

As to the provisions of 38 C.F.R. § 3.303(b), discussed previously, relating to chronicity and continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, there is no dispute that the Veteran is competent to report events that occurred in service, and to describe symptoms of difficulty hearing and tinnitus because this requires only personal knowledge as it comes to him through his senses.  When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.").  In such cases, the Board is within its province to weigh that evidence and to make a credibility determination.

Here, based on the record, the Board acknowledges that the Veteran has claimed that he has had hearing loss and tinnitus since service.  However, the Board finds his contentions regarding a continuity of symptomatology are not credible.  In this regard, as shown above, there is no record of in-service treatment or complaints of tinnitus or hearing loss.  Likewise, the Veteran has given conflicting statements regarding postservice noise exposure which call to question the veracity of his statements regarding the etiology and onset of his current disabilities.  Moreover, the Board has considered the multi-year gap between discharge from active duty service (1974) and initial documented evidence of disabilities in the January 2011 VA medical examination report, approximately 37 years after service separation.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). 

To the extent that the Veteran contends that a medical relationship exists between his current disabilities and service, the Board again acknowledges that lay persons are competent to testify as to observations that they perceive through their senses.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's current hearing loss and tinnitus, diagnosed many years after service, and any instance of his military service, to include noise exposure, to be complex in nature such that medical evidence of nexus is required.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

Here, while the Veteran is competent to describe his in-service noise exposure as well as his current symptoms, the Board accords these statements regarding the etiology of his disability little probative value as they are not competent to opine on such a complex medical question.  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. West, 12 Vet. App. 460, 465 (1999).  In contrast, the opinion of the VA examiner has been given great probative weight as the examiner provided a detailed rationale in support of the opinion that hearing loss and tinnitus are not related to service that is consistent with the remainder of the evidence of record and that cites to the relevant evidence.

In light of the foregoing, the Board concludes that Shedden element three, nexus, has not been satisfied.  Thus, the preponderance of the evidence is against a finding that the Veteran's current hearing loss disability and tinnitus were incurred in or aggravated by active service.  Accordingly, service connection for a hearing loss disability and service connection for tinnitus are denied.  

(CONTINUED ON NEXT PAGE)


ORDER

New and material evidence having been received, the claims for service connection for a bilateral hearing loss disability and tinnitus are reopened, to this limited extent, is granted.

Service connection for bilateral hearing loss disability is denied. 

Service connection for tinnitus is denied.


____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs