Citation Nr: 1334799 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-31 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from September 1959 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) from July and August 2009 rating decisions of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA) that reopened the claim for service connection for bilateral hearing loss, and denied service connection for bilateral hearing loss and tinnitus. Although it appears that the RO reopened the Veteran's claim for service connection for bilateral hearing loss, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a determination that may have been made by the RO. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran testified at a personal hearing before the undersigned Veterans Law Judge at the RO in September 2011. A transcript of the proceeding is of record. FINDINGS OF FACT 1. In a March 2005 rating decision, the RO denied the Veteran's initial claim for service connection for bilateral hearing loss. 2. New evidence received since the March 2005 rating decision, considered in conjunction with the record as a whole, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The most probative evidence shows that the Veteran does not have bilateral sensorineural hearing loss that had its onset in service, was manifest to a compensable degree within one year of discharge, or is otherwise related to his period of active duty, including noise exposure in artillery service. 4. The most probative evidence shows that the Veteran does not have tinnitus that had its onset in service, was manifest to a compensable degree within one year of discharge, or is otherwise related to his period of active duty, including noise exposure in artillery service. CONCLUSIONS OF LAW 1. A March 2005 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Bilateral sensorineural hearing loss was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013). 4. Tinnitus was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was provided appropriate notice in letters dated in May 2009, prior to the rating decisions on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim, including at his videoconference hearing before the undersigned. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the representative that demonstrate an awareness of what is necessary to substantiate claim). Thus, VA has satisfied its duty to notify the appellant. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claims on appeal and the examination is adequate and sufficient upon which to decide the claims addressed herein. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When VA provides an examination, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Consequently, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within applicable time limits. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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) (2013). VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the newly submitted evidence will be presumed credible. Kutscherousky v. West, 12 Vet. App. 369 (1999). For a claim to be reopened, there need not be new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO denied the Veteran's initial claim for service connection for bilateral hearing loss in a March 2005 rating decision. The evidence of record at the time of the decision included the Veteran's service medical records, which did not document complaints or a diagnosis of hearing loss and post-service medical reports that did not show bilateral hearing loss by VA standards that was due to an event during military service. Based on the evidence, the RO concluded that the Veteran did not have bilateral hearing loss disability as a result of his military service. The Veteran was notified of the Board's decision but he did not appeal it. Therefore, that decision became final. 38 U.S.C.A. § 7105 (West 2002). In February 2009, the Veteran requested that his claim be reopened. The additional evidence associated with the file includes the Veteran's assertions of noise exposure during military service; and a March 2009 private audiogram with a statement that the Veteran had "possible noise induced" hearing loss while in the military. The Board finds that additional evidence is new, in that the documents were not previously of record. The Board also finds that the additional evidence is material because it relates to a prior basis for denial of the claim in asserting that the Veteran has bilateral hearing loss that was manifest in service or due to military noise exposure. Solely for the purpose of determining whether to reopen the claim, the new evidence is presumed credible. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thus, the Board finds that new and material evidence has been received, and the claim is reopened. To that extent only, the claim is allowed. Service Connection Service connection may be established for a disability resulting from injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology of a chronic disability identified in 38 C.F.R. § 3.309(a) from the time of service until the present is required where the chronicity of a condition manifested during service has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Certain chronic disabilities, such as sensorineural hearing loss or tinnitus (as an organic disease of the nervous system), if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). 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). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 (2013). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). 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). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001). Competency of evidence must be distinguished from weight and credibility, which are factual determinations in determining the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). It is the responsibility of the Board to determine the probative weight to be assigned among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt will be resolved in the claimant's favor, and the claim will be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon entrance examination in September 1951, audiological testing was not performed. Whispered voice testing was recorded as 15/15. No hearing loss was noted in the summary of defects although bilateral cerumen impacted was indicated with a notation that it was not disabling. Upon separation examination in September 1963, whispered voice testing was again recorded as 15/15. No hearing loss was noted in the summary of defects. Private medical records dated in November 2003 show that the Veteran was seen for a closed head injury when he fell 25 feet at a construction site. In a February 2004 VA outpatient treatment report, the Veteran provided a history of falling from a 25-foot ladder in November 2003 and that he sustained a brain injury. He also reported that his memory abilities were affected by the fall but that he had been attending memory classes. In a February 2009 statement, the Veteran reported that while serving in the United States Marine Corps, he was exposed to artillery fire and weapons fire. No hearing protection was offered or used. His service separation form and other personnel records document that his awards and decorations included the Rifle Requalification Badge (Sharpshooter). At his personal hearing in September 2011, he testified that he was exposed to extensive noise in service and did not experience work-related post-service noise hazards because the construction work he performed did not involve power tools or noise. He also denied any significant head trauma. A March 2009 private audiogram contains a statement that the Veteran had "possible noise induced" hearing loss while in the military. A July 2009 VA treatment report shows that the Veteran was seen for complaints of labyrinthitis. He had an upper respiratory infection six to eight weeks prior and several days later he had four days of continual vertigo symptoms that were unrelenting and not positional. There was no change in his hearing, tinnitus, or fullness. Symptoms resolved over the next few weeks and were currently resolved. He denied hearing loss and tinnitus. His past medical history included a closed head injury. A VA audiology note shows that the Veteran was seen in August 2009 for complaints of hearing loss. It was noted that he was referred for a hearing evaluation following complaints of experiencing vertigo. He had a bout of vertigo two months prior that lasted several days but it had since resolved. He related a significant history of noise exposure in the military operating artillery for two years. He also reported a significant history of noise exposure occupationally as a construction worker for 40 years. In a September 2009 VA outpatient report it was noted that the Veteran's hearing was normal and he did not have tinnitus or otorrhea. Upon VA audiology examination in May 2010, it was noted that the claims folder and medical records were reviewed. The Veteran provided a history of military noise exposure that included two years with the artillery with no hearing protection. Post-service noise exposure included excessive noise working in carpentry and construction with hearing protection worn only in the latter years of his career. He denied other noise exposure. An audiogram revealed puretone thresholds of 20, 20, 20, 40, and 45 decibels in the right ear and 10, 10, 25, 30 and 45 decibels in the left ear at 500, 1000, 2000, 3000 and 4000 Hertz. The diagnosis was mild to moderate sensorineural hearing loss and tinnitus, bilaterally. After reviewing the file, the examiner opined that it was less likely that the Veteran's currently manifest hearing loss and tinnitus were due to noise exposure in service. There were no indications of hearing loss or tinnitus in service and the Veteran had 40 plus years working in construction and carpentry after service. Based on the evidence of record, the Board finds the most probative evidence, the May 2010 VA examination report, shows that the Veteran's currently manifest bilateral sensorineural hearing loss and tinnitus were not due to his military noise exposure. Winsett v. West, 11 Vet. App. 420 (1998). The clinical opinion was rendered after thorough evaluation of the Veteran and a complete review of his claims file, including his service medical records, private medical records, and lay statements. The Board has accorded them significant probative value. Bloom v. West, 12 Vet. App. 185 (1999). The Veteran has submitted a statement from a private audiologist who remarked that it was "possible" that the Veteran had noise induced hearing loss while in the military. However, in the absence of treatment for that condition in service or for many years later, the Board finds that opinion less persuasive. That opinion also appears to be based on a history provided by the Veteran. LeShore v. Brown, 8 Vet. App. 406 (1995) (mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.); Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Elkins v. Brown, 5 Vet. App. 474 (1993); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (medical evaluation that is merely a recitation of a veteran's self-reported and unsubstantiated history has no probative value). Moreover, the opinion was not based on a review of the Veteran's clinical history and is essentially equivocal and speculative as it only shows that a relationship was possible. Therefore, that opinion does not establish that it is at least as likely as not related to service. Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies may or may not" and is too speculative to establish medical nexus). Accordingly, the Board finds that the statements lacks significant probative value. Bloom v. West, 12 Vet. App. 185 (1999). The clinical records do not show that the Veteran had hearing loss disability by VA standards either in service or within one year of discharge. The Veteran has alleged continuity of hearing loss symptomatology and tinnitus since service. He is competent to provide testimony as to having experienced difficulty hearing during service and after his discharge. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994) (Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). However, he is not competent to diagnose himself with hearing loss disability, or to attribute any hearing loss to a specific cause because the diagnosis of the various types of hearing loss and determining the etiology is a determination that is medical in nature. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Veteran's opinion regarding the presence or etiology of sensorineural hearing loss disability in service or shortly thereafter lacks probative value and it does not constitute competent medical evidence. Sensorineural hearing loss disability is a complex disorder that requires specialized training and equipment for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology alone. Therefore, the Veteran's statements therein cannot be accepted as competent evidence sufficient to establish service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board finds that the Veteran's statements regarding continuity of symptomatology are not credible. 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 witness testimony. Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, although the Veteran has asserted continued hearing loss and tinnitus symptoms since his discharge from service, he did not report any such difficulties upon separation examination, and the medical records do not denote a diagnosis of hearing loss disability or tinnitus until the 2000s, more than 35 years after the Veteran's discharge from active duty. A prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the absence of any complaints of hearing loss in service or in the immediate years following discharge, together with medical reports documenting a denial of hearing problems and tinnitus are against the Veteran's claims for service connection. Additionally, the Veteran initially filed his claim for benefits in 2005 after he sustained a work-related closed head injury that prevented him from returning to his regular employment. Notably, there are medical reports in the file that document memory problems as a result of the head injury and the Veteran's statements have been inconsistent. For example, on VA examination in May 2010 and during other medical treatment, the Veteran reported a 40-year history of work-related noise exposure in the construction industry. Subsequently, at his personal hearing in September 2011, he alleged that he was not exposed to significant noise during that 40-year period because his responsibilities did not involve the use of heavy machinery. Based on the foregoing, which shows inconsistency and interest in the Veteran's contentions related to his claim for VA benefits, the Board finds that he is not credible to the extent that he reports that he has had hearing loss and tinnitus symptoms since active service. Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (pecuniary interest may affect the credibility of a claimant's testimony). Therefore, the Board finds that the evidence does not support a finding of continuity of symptomatology following the in-service noise exposure as required to establish service connection for a chronic disease listed in 38 C.F.R. § 3.309(a) pursuant to 38 C.F.R. § 3.303(b). In sum, the preponderance of the evidence is against the claim. The evidence does not show that it is at least as likely as not that bilateral hearing loss or tinnitus was incurred in service or manifested to a compensable degree within one year following separation from service. Consequently, the Board concludes that service connection for bilateral sensorineural hearing loss and tinnitus are not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs