Citation Nr: 1337993 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-28 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a bilateral hearing loss disability, and, if so, whether service connection is warranted. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. In a decision of January 1970, the RO denied the claim of service connection for a hearing loss disability on the basis that a current disability was not shown; the Veteran was notified of the decision and of his appellate rights but he did not appeal. 2. Some of the additional evidence received since the RO's January 1970 decision includes records showing the current presence of bilateral hearing loss. 3. A chronic bilateral hearing loss disability did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service. 4. VA examination fails to link the Veteran's claimed tinnitus to service. CONCLUSIONS OF LAW 1. The claim for service connection for a bilateral hearing loss disability is reopened; the criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1110, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify When VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: 1) any information and medical or lay evidence that is necessary to substantiate the claim, 2) what portion of the information and evidence VA will obtain, and 3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in December 2008. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records together with VA records and private medical records. The Veteran also was afforded compensation examination in September 2009 and an addendum opinion was issued in May 2010. As the opinion was based on a review of the Veteran's history and described the disability in sufficient detail so that the Board's review is a fully informed one, the reports are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). With no indication of the existence of additional evidence to substantiate the claims for a hearing loss disability and tinnitus, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Claim to Reopen The Veteran's service connection claim for bilateral hearing loss was initially denied by a January 1970 rating decision, and the Veteran was informed of his appellate rights but failed to submit a notice of disagreement. Thus, the decision became final. In September 2008, the Veteran submitted a statement indicating his desire to reopen his claim. His request was denied by the RO in an September 2009 rating decision, which matter is now before the Board. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision-makers. 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). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120. As reflected in the January 1970 rating decision, the last prior final decision, the Veteran's claim was denied because the evidence of record failed to establish a current diagnosis of bilateral hearing loss. Additional evidence received since January 1970, includes those reflecting a current diagnoses of a bilateral hearing loss disability. This evidence is both new and material, thereby serving to reopen the Veteran's claim. The merits of this reopened claim are addressed below. Hearing Loss The Veteran contends that he was exposed to acoustic trauma during service while performing his duties as a combat engineer and that he developed bilateral hearing loss as a result. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces. Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above 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. Service treatment records show that the Veteran was found to have a low frequency hearing loss at separation, with the audiogram at that time showing pure tone thresholds, in decibels, at 500, 1000, 2000, and 4000 Hertz of 30, 20, 5, and 10 dB in the right ear, and 30, 15, 0, and 5 dB in the left ear. VA audiological examination in November 1969, however, showed normal hearing, with pure tone thresholds in decibels at 500, 1000, 2000, and 4000 Hertz of 5, 0, 0, and 5 dB in the right ear, and 5, 0, 0, and 0 dB in the left ear. Speech discrimination ability was 100 percent in each ear. The subsequent evidence of record, including records of medical treatment reveal no complaints, symptoms, or diagnosis of hearing impairment until August 2008, 40 years post service. When examined in connection with his claim for benefits in September 2009, the Veteran was diagnosed to have bilateral hearing loss, with the examiner offering the opinion that it is less likely as not that the current hearing loss is caused by or the result of his military noise exposure. The rationale was that the Veteran had normal hearing by the time of his 1969 VA examination, he had post-service occupational noise exposure as a carpenter; and an August 2008 audiological evaluation report noted that hearing loss began around 2003, many years after separation from service. After reviewing the evidence of record, the Board concludes that service connection for a bilateral hearing loss disability is not warranted. First, while the Veteran is competent to describe symptoms of hearing loss in and since service, the Board finds that his statements in this regard are belied by the normal hearing acuity noted on evaluation in 1969; more recent statement that symptoms of hearing impairment began around 2003; and the fact that volumes of medical records and claims since service fail to mention hearing impairment. For these reasons, the Veteran's statements describing hearing impairment since service are deemed not credible and afforded little probative value. Second, the Veteran, a lay person, who lacks the requisite medical expertise and training to diagnose and opine as to the etiology of a complex medical condition such as hearing loss, is not competent to self-diagnose a hearing loss disability in service or provide an opinion pertaining to the etiology of his current bilateral hearing loss disability. Therefore, any statements in this regard are not probative. Given these conclusions together with the VA examiner's opinion that the Veteran's hearing loss is not related to service, the greater weight of the evidence is against the claim. Accordingly, service connection for bilateral hearing loss is denied. Tinnitus The Veteran seeks service connection for tinnitus. In connection with this claim, he was examined for VA purposes in September 2009. At that time, the VA examiner observed that the Veteran's reported symptoms did not describe tinnitus. He explained that "what [the Veteran] is describing as a brief sound once a week that goes away when he rubs his ears..." The examiner added that this would not be the result of noise exposure, and noted that the Veteran had no complaint that would typically be associated with a history of noise exposure. He went on to say even if there was tinnitus, it would not be related to service, because it would be accompanied by in-service noise induced hearing loss, which the Veteran does not have. As to any current contention of symptoms of tinnitus since service, neglecting to mention it on the numerous claims for VA benefits over the years or in any treatment record for 30 plus years is sufficient to conclude this history is inaccurate, and not probative. Accordingly, with the most probative evidence failing to show any tinnitus symptoms until many years after service, and with the only medical opinion on the subject failing to link any tinnitus to service, the greater weight of the evidence is against the claim that tinnitus was incurred in service. ORDER The claim for service connection for a bilateral hearing loss disability is reopened; but the reopened claim for service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs