Citation Nr: 1340313 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-02 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left ear hearing loss. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for Eustachian tube dysfunction. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from May 1971 to June 1972. These claims come before the Board of Veterans Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified in support of these claims during a hearing held at the RO before the undersigned Veterans Law Judge (VLJ) in June 2013. FINDINGS OF FACT 1. On June 18, 2013, prior to the promulgation of a decision in this case, the Board received a request from the Veteran to withdraw the claim of entitlement to service connection for right ear hearing loss. 2. In a rating decision dated April 1986, which the Veteran did not appeal, the RO denied the Veteran entitlement to service connection for left ear hearing loss and Eustachian tube dysfunction. 3. The evidence received since April 1986 is neither cumulative nor redundant of the evidence previously of record and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim for service connection for left ear hearing loss and Eustachian tube dysfunction. 4. Tinnitus, left ear hearing loss, and Eustachian tube dysfunction had their onset during active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal on the claim of entitlement to service connection for right ear hearing loss are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. The April 1986 rating decision denying the Veteran entitlement to service connection for left ear hearing loss and Eustachian tube dysfunction is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1986). 3. New and material evidence has been received to reopen a claim of entitlement to service connection for left ear hearing loss and Eustachian tube dysfunction. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. Tinnitus, left ear hearing loss, and Eustachian tube dysfunction were incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Right Ear Hearing Loss Claim Under 38 U.S.C.A. § 7105 (West 2012), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2013). Either an appellant or his or her authorized representative may request withdrawal. 38 C.F.R. § 20.204 (2013). On June 18, 2013, prior to the promulgation of a decision in this case, the Board received a request from the Veteran to withdraw from appeal the claim of entitlement to service connection for right ear hearing loss. With regard to that claim, there thus remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim and it must be dismissed. II. Remaining Claims A. Finality The RO previously denied the Veteran's claims for service connection for left ear hearing loss and Eustachian tube dysfunction in a rating decision dated April 1986. In deciding these claim, the RO considered the Veteran's service treatment records. The RO found, although the Veteran was treated for an ear condition and diagnosed with left ear hearing loss during service, by separation, the conditions had resolved. The RO notified the Veteran of his appellate rights, but the Veteran did not appeal the denial and the RO did not receive new and material evidence within one year of that decision. 38 C.F.R. § 3.156(b). The April 1986 rating decision denying the Veteran entitlement to service connection for left ear hearing loss and Eustachian tube dysfunction is thus final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1986). Under the provisions of 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § 3.156(c)(i). Here, no service department records have been obtained since April 1986. Therefore, VA need not reconsider these claims. The Veteran attempted to reopen these claims by written statement received in November 2008. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2002). 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). When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The phrase "raise[s] a reasonable possibility of substantiating the claim" enables rather than precludes reopening, consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence on each unproven element of a claim. Id. at 120. Therefore, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the appellant's claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant's claim unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995). The evidence that has been associated with the claims file since the RO's April 1986 rating decision includes private treatment records, VA examination reports, medical articles, and the Veteran's hearing testimony and written statements. This evidence is new. It is neither cumulative, nor redundant of the evidence previously of record. It is also material. By itself or when considered with the evidence previously of record, it relates to an unestablished fact necessary to substantiate the claims for service connection for left ear hearing loss and Eustachian tube dysfunction. The medical evidence establishes that the Veteran has left ear hearing loss and Eustachian tube dysfunction, which did not resolve on separation. The absence of this type of evidence formed the basis of the RO's previous denial of the claims for service connection for left ear hearing loss and Eustachian tube dysfunction. B. Merits 1. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. Specifically, VA is to notify the claimant of the information and evidence not of record that is necessary to substantiate his or her claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, the Board need not discuss whether VA complied with these requirements. Rather, due to the favorable disposition in this case, the Board's decision to proceed in adjudicating these claims is harmless, not prejudicial to the Veteran or affecting the essential fairness of the adjudication. Conway v. Principi, 353 F.3d at 1374; Bernard v. Brown, 4 Vet. App. at 384. 2. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a) (2013), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. C.F.R. § 3.303(b); Walker, 708 F.3d at 1338 (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology"). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Walker, 708 F.3d at 1339. In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for sensorineural hearing loss as a chronic disease may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). This presumption may only be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The evidence shows that the Veteran had some decreased hearing in the left ear on entrance examination in April 1971, but it was not severe enough to be considered a disability by VA standards. Impaired hearing is considered a disability under VA law, in relevant part, when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater. 38 C.F.R. § 3.385. Such was not shown on the Veteran's entrance examination. Therefore, the veteran is considered to have been in sound condition when he examined, accepted and enrolled for service. Although he subsequently gave a history of a perforated left tympanic membrane prior to service in 1970, his lay statement alone does not rise to clear and unmistakable evidence demonstrating that his condition existed before acceptance and enrollment into service. See 38 C.F.R. § U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Service treatment records show that the Veteran began reporting ear trouble and indicating that he wanted to be off the flight line. He indicated that he had perforated his left tympanic membrane in February 1970, prior to service, and had tinnitus. The Veteran remained working on the flight line and, in January 1972, he experienced a sudden decrease in hearing in the left ear after he was exposed to an increased noise level. A doctor confirmed bilateral Eustachian tube dysfunction manifested by a slightly retracted and immobile right tympanic membrane, an atalectatic left tympanic membrane, fluid in the middle left ear, mixed hearing loss on the left and conductive hearing loss on the right. This dysfunction necessitated the placement of a P-tube in the Veteran's left ear and resulted in the Veteran's removal from the flight line and receipt of a temporary hearing loss profile with no exposure to loud or hazardous noise, wind or dust. Through February 1972, the Veteran continued to report difficulties with his ears. One examiner noted that the Veteran's ears were not impaired. By letters dated in February 1972, his parents wrote that they had visited one of the Veteran's doctors, who told them the Veteran had serious ear damage, from which some improvement but also some permanent hearing loss were expected. They urged the Air Force to look into the matter, move the Veteran from barracks located near the flight line and provide the Veteran all treatment needed to regain his hearing, if possible. In response, the Veteran underwent an evaluation, during which it was determined that his audiometric responses were inconsistent, possibly due to his exaggeration, requiring further evaluation. Upon audiological reevaluation, the Veteran's hearing showed improvement. By letter dated in March 1972, written based on a discussion with the doctor who conducted the reevaluation, an Air Force surgeon informed the Veteran's parents that the Veteran had middle ear disease and much improved hearing loss, indicating that the initial hearing loss was likely due to obstructive ear disease, not nerve loss. The surgeon explained that there was no indication the hearing loss was caused or made worse by noise exposure and that, in the future, the Veteran needed to keep his left ear ventilated, but could return to the flight line once his ears were fully healed. Audiograms conducted in April 1972 revealed resolved Eustachian tube dysfunction, normal hearing on the right and mild high frequency mixed or sensorineural (record conflicts) hearing loss on the left. By letter dated April 1972, the surgeon informed the Veteran's parents that the Veteran had mild residual high frequency hearing loss on the right and that an otolaryngologist had suggested that the Veteran be reclassified to work in areas with no loud noises. He further informed the parents that the Veteran wanted to get out of the service and, as such, was undergoing psychiatric evaluation for the purpose of determining whether there were grounds for an administrative discharge. During this evaluation, a medical professional determined that the hearing difficulties had precipitated the development of a character behavior disorder, which did not improve as the Veteran's hearing problems improved. The Air Force thus separated the Veteran and, on the separation examination conducted in June 1972, an examiner noted good improvement in the Veteran's noise-induced hearing loss with mild, asymptomatic loss on the left. The Veteran was afforded VA audiological and ear examinations in December 2011. He was shown to have hearing loss by VA standards, tinnitus, and atrophic, retracted tympanic membranes. The VA audiology examiner stated that the Veteran's left ear hearing loss is not likely due to in-service acoustic trauma or noise exposure, but rather due to middle ear issues still unresolved. The examiner also concluded that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure because the Veteran was on a drug on the list of tinnitus-inducers. The VA ear examiner noted that the Veteran had an upper respiratory infection during service resulting in negative middle ear pressure bilaterally and persistent middle ear effusion on the left. The examiner stated that nothing inherent in the Veteran's duties caused or aggravated his Eustachian tube dysfunction and his middle ear effusion would have occurred regardless of his military service or occupation and is due to abnormal anatomy. With respect to tinnitus, the VA examiner's opinion is inadequate because it did not take into account the Veteran's reported history of tinnitus beginning in service and continuing since that time. The service treatment record show that the Veteran complained of tinnitus in January 1972. He is currently shown to have tinnitus and has reported a continuity of symptomatology since service. The Veteran is competent to report suffering ringing in his ears since service, as this is an observable condition, and the Board finds his statements to be credible. Therefore, service connection for tinnitus is warranted. With respect to the left ear hearing loss and bilateral Eustachian tube dysfunction, while the VA examiners provided negative opinions, the reasoning behind their opinions actually support the Veteran's claims. The VA ear examiner stated that nothing inherent in the Veteran's duties caused or aggravated his Eustachian tube dysfunction, and his middle ear effusion would have occurred regardless of his military service or occupation and is due to abnormal anatomy. The Board notes that the Veteran's military duties need not cause a disability in order to warrant service connection; rather, the relevant question here is whether Eustachian tube dysfunction had its onset during service. The VA ear examiner noted that the Veteran had Eustachian tube dysfunction during service; and the VA audiology examiner noted that the Veteran's middle ear issues were still unresolved. In addition, the VA audiology examiner attributed the Veteran's left ear hearing loss to his middle ear issues. See 38 C.F.R. § 3.310. Thus, service connection for left ear hearing loss and bilateral Eustachian tube dysfunction is granted. ORDER The appeal on the claim of entitlement to service connection for right ear hearing loss is dismissed. Service connection for tinnitus is granted. Service connection for left ear hearing loss is granted. Service connection for Eustachian tube dysfunction is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs