Citation Nr: 1334715 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-39 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right ear hearing loss, to include as secondary to service-connected residuals of a tonsillectomy. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left ear hearing loss, to include as secondary to service-connected residuals of a tonsillectomy. 3. Entitlement to service connection for substance abuse disability secondary to service-connected psychiatric disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from October 1968 to June 1970. These matters come before the Board of Veterans' Appeals (BVA or Board) from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This case was previously before the Board in June 2013 and was remanded for additional development. In August 2009 the Veteran gave testimony at a hearing at the RO before a local hearing officer. FINDINGS OF FACT 1. A June 1995 rating decision denied service connection for bilateral hearing loss. 2. Evidence added to the record since the June 1995 RO decision, considered in conjunction with the record as a whole, is new, relates to an unestablished fact necessary to substantiate the Veteran's hearing loss claim, and raises a reasonable possibility of substantiating the Veteran's claim for service connection for bilateral hearing loss disability. 3. There has been no demonstration of current right ear hearing loss disability for VA purposes by competent clinical evidence of record. 4. There has been no demonstration by competent clinical evidence, or credible lay evidence, that left ear hearing loss was present in service, that left ear hearing loss disability was demonstrated to a compensable degree within a year of discharge from service, or that there is a nexus or link between left ear hearing loss disability and the Veteran's active service or service-connected disability. 5. The Veteran does not have a current substance abuse disability. CONCLUSIONS OF LAW 1. The June 1995 RO decision that denied service connection for bilateral hearing loss disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2013). 2. New and material evidence has been received, and the claim for entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. Service connection for right ear and left ear hearing loss disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 4. Service connection for substance abuse disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence, including that dated in February 2005, March 2006, and September 2012, the Veteran was informed of the evidence and information necessary to substantiate the claims, the information required of the Veteran to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the March 2006 letter the Veteran received notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claims, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In light of the favorable Board decision below to reopen the claim for service connection for bilateral hearing loss disability, any deficiency as to notice consistent with Kent v. Nicholson, 20 Vet. App. 1 (2006), or as to compliance with the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is rendered moot. Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Board finds that the VA opinions obtained in this case are more than adequate. The VA opinions considered the pertinent evidence of record, and included a specific reference to the Veteran's service treatment records. Supporting rationale was provided for the opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). During the September 2009 RO hearing, to assist the Veteran, the hearing officer asked questions in an effort to determine the time of hearing loss onset and also to understand the Veteran's theory of hearing loss etiology. The officer also reviewed the evidence to determine whether further examinations were required. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the RO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Board finds that there has been substantial compliance with its June 2013 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Significantly, as noted, the Veteran has undergone VA examinations that addressed the medical matters presented by this appeal. In a July 2013 statement the Veteran indicated that he was treated at the Indianapolis VAMC since 1974 and that such records are not associated with the claims file. However, in March 2009 such records were received and associated with the claims file. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Laws and regulations Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations 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). This rule does not mean that any manifestations in service will permit service connection. To show 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 disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen. The regulation which governs claims for secondary service connection, was amended during the pendency of this appeal, effective October 10, 2006. The current 38 C.F.R. § 3.310(b) sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Given what appear to be substantive changes, and because the Veteran's claim (received in January 2005) was pending before the regulatory change was made, the Board will consider the version in effect before the change, which version favors the claimant. In regard to claims specific to service connection for hearing loss, the Veterans Benefits Administration Adjudication Manual states that "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. As such, service connection for sensorineural hearing loss (as an organic diseases of the nervous system) may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. Moreover, the concept of continuity of symptomatology as clarified by Walker, Supra., is applicable in this case. As noted by the VA examiners, the Veteran's left ear hearing loss is sensorineural in nature. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Audiometric results were reported pursuant to the standards set by the American Standards Association (ASA) during the Veteran's service. Standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI) since November 1, 1967, however. I. Hearing loss In general, rating decisions that are not timely appealed are final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court of Appeals for Veterans Claims (Court) indicated that new and material evidence could be found where the new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger VA's duty to assist by providing a medical opinion. A June 1995 rating decision denied service connection for hearing loss disability. Subsequent to the June 1995 denial, the Veteran made an assertion that his hearing loss may be related to service-connected residuals of a tonsillectomy. Based on the Veteran's new assertion and his statements made in this case, including at his August 2009 RO hearing, the Board finds that the old and new evidence of record, considered as a whole, "triggers" VA's duty to assist to provide a medical opinion in this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i). On this basis, and consistent with the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that new and material evidence has been received to reopen the hearing loss claims. The Board will now address the merits of the claims. As noted, the Veteran asserts that he has hearing loss as a result of his military service. He has alternatively indicated that his hearing loss is related to his service-connected residuals of a tonsillectomy. The Veteran's September 1968 service enlistment examination noted that the Veteran's ears were normal. Audiometric findings were, in pertinent part, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 Not tested 0 LEFT 5 5 5 Not tested 0 The Veteran's service treatment records are negative for any recorded evidence of complaints, treatment, or diagnoses of any hearing loss. The Veteran's June 1970 service discharge examination noted that the Veteran's ears were normal and indicated bilateral whisper test results of 15/15. There were no audiometric findings. A March 1994 VA record noted that the Veteran complained of hearing loss. An April 1994 VA audio evaluation indicated that the Veteran's left ear hearing loss was not within normal limits. An August 2005 VA record indicates that the Veteran did not know when he had lost his left ear hearing ability but that it had been of sudden onset. An April 2006 VA MRI revealed a focal area of labyrinthitis or a small intra labyrinthine schwannoma. An October 2006 VA record noted that the Veteran had experienced sudden left ear sensorineural hearing loss. At an October 2006 VA audiological examination, the Veteran reported difficulty in hearing from his left side. He stated that he was exposed to large gun fire aboard ship during his active service. Audiometric testing demonstrated left ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The examiner stated that the Veteran's left ear hearing loss was not related to his military service but was likely related to his left ear schwannoma. At his August 2009 RO hearing the Veteran indicated that he was exposed to gun fire aboard ship as well as to noise from vehicles coming off the ship. He wasn't sure when his left ear deafness began. At a November 2012 VA audio examination, the examiner stated that the Veteran's left ear hearing loss was not related to his military service but was likely a result of "a focal area of labyrinthitis or a small intra-labrynthine schwannoma." At a July 2013 VA audiological examination the Veteran had normal hearing in the right ear and hearing loss for VA purposes in the left ear. The examiner indicated that she was not able to opine as to whether the Veteran's left ear hearing loss was related to his service-connected residuals of a tonsillectomy. Following a review of the Veteran's records, in August 2013 a VA physician indicated that the Veteran's left ear hearing loss was not related to or aggravated by service-connected residuals of a tonsillectomy. A. Right ear The record is absent for any competent clinical evidence showing that the Veteran has current right ear hearing loss "disability" for VA purposes. 38 C.F.R. § 3.385. Absent evidence of a current disability, an award of service connection is not appropriate. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). B. Left ear Multiple VA audiometric testing results have demonstrated left ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. However, neither left ear hearing loss, nor a medical finding of a chronic clinically significant change in hearing ability in the left ear, was demonstrated during the Veteran's active service. Moreover, left ear hearing loss "disability" for VA purposes was not demonstrated to a compensable degree within the first year of discharge from such service, and was not shown until 1994, many years following service. Significantly, there is no competent medical opinion linking left ear hearing loss disability to service, and the August 2013 VA examiner has indicated that the Veteran's left ear hearing loss is not related to or aggravated by service-connected residuals of a tonsillectomy. As for the probative value of the VA opinions, the Board observes that the November 2012 and August 2013 VA opinions were based on a review of the Veteran's claims file and noted the Veteran's assertions concerning his hearing loss. The examiners noted the history of the Veteran's noise exposure (during and after service) and referenced findings from specific records in the Veteran's claims file. The August 2013 opinion had a rationale that was supported, at least in part, by medical literature. The Veteran is competent to report having sustained acoustic trauma during his military service, and as such is consistent with the circumstances of his service, such assertions are deemed to be credible. The Board notes that the Veteran is competent to provide statements concerning factual matters of which he has first hand knowledge (i.e., experiencing or observing noise exposure and hearing loss problems during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran lacks the medical training and expertise to opine that any current left ear or right ear hearing loss is etiologically related to acoustic trauma in service or to service-connected disability. Such questions can not be answered by mere observation alone, and are therefore not simple questions. Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. While the Veteran is competent to report that he has had left ear hearing loss since service, the Board finds that the Veteran's statements as to continuity of symptomatology since service are not supported by the record. In this regard, the Board notes that the Veteran did not indicate that he had any left ear hearing loss at the time of his separation from service or until many years following service. A May 1996 VA record indicates that the Veteran had reported progressive left ear hearing loss the prior 2 or 3 years. In view of the medical evidence to the contrary, the Board does not find that the Veteran's lay statements are sufficient to establish continuity of symptomatology of left ear hearing loss. Accordingly, service connection for left ear hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). II. Substance abuse The veteran asserts that he has substance abuse disability that is secondary to his service-connected psychiatric disability. The Veteran is currently service-connected for an anxiety disorder. At a July 2013 VA mental disorders examination, the diagnosis was polysubtance abuse in full sustained remission since the "mid 1990s." The Veteran stated that he had been abstinent from all substances since undergoing treatment through an inpatient treatment program with the Salvation Army in the 1990s. This case turns on the current disability element of a service connection claim. The preponderance of the evidence of record shows that the Veteran has not had a chronic substance abuse disability during the course of his claim and appeal. The Board finds the opinion from the July 2013 VA examiner to be the most probative opinion in this case as to the question of whether the Veteran currently has or has had a substance abuse disorder since filing his claim in February 2005. The July 2013 VA examiner's opinion was based on a contemporaneous examination and also was based on the most up to date evidence of any opinion or diagnosis rendered in this case. The Veteran has not disputed the July 2013 VA examiner's diagnosis. Instead, he has indicated that he feels that he should be compensated for the many years that he dealt with his substance abuse problems. However, as there has been no chronic substance abuse disorder since filing his claim, service connection must be denied. The Board notes in passing that the VA examiner also indicated that the Veteran's substance abuse disorder and problem was not related to his service-connected psychiatric disability. The preponderance of evidence is against a finding that the first element of a service connection claim for a substance abuse disorder has been met at any time since the Veteran filed his claim. Therefore the appeal as to the substance abuse disorder must be denied. Brammer v. Derwinski, 3 Vet. App. 223. 225 (1992). There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for right ear hearing loss, to include as secondary to service-connected residuals of a tonsillectomy, is denied. Service connection for left ear hearing loss, to include as secondary to service-connected residuals of a tonsillectomy, is denied. Service connection for substance abuse, to include as secondary to service-connected psychiatric disability, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs