Citation Nr: 1641412 Decision Date: 10/24/16 Archive Date: 11/08/16 DOCKET NO. 13-33 674 ) 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 the Veteran's claim for left ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and Ms. H. ATTORNEY FOR THE BOARD M. Lavan, 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 from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter came before the Board in May 2015, at which time the Board remanded the matter for a videoconference hearing before a Veterans Law Judge. The matter has been properly returned for appellate consideration and the Board is satisfied that there has been substantial compliance with the Board's remand. Specifically, in March 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. Thus, no further action is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran filed a claim for left ear hearing loss in March 2006. 2. The RO denied this claim in an August 2006 rating decision. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the decision became final. 3. The Veteran has since filed new and material evidence to reopen his claim for service connection for left ear hearing loss. 4. The Veteran's left ear hearing loss did not occur in, and is otherwise unrelated to, service. 5. The Veteran did not incur a TBI in service. CONCLUSIONS OF LAW 1. The August 2006 rating decision, which denied service connection for left ear hearing loss, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. The evidence received since the August 2006 rating decision is new and material, and the claim for service connection for left ear hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. § 3.159, 3.303, 3.655 (2015). 4. The criteria for service connection for a TBI have not been met. 38 U.S.C.A. §§ 1110, 1131, 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. § 3.159, 3.303, 3.655 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reopening Service Connection The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The initial question before the Board, therefore, is whether new and material evidence has been received, regardless of how the RO characterized the issue. Prior unappealed decisions of the Board and the RO are final. 38 U.S.C.A. §§ 7104, 7105(c) (West 2014); 38 C.F.R. §§ 3.160(d), 20.302(a), 20.1100, 20.1103, 20.1104 (2015). If, however, new and material evidence is presented or secured with respect to a claim which has been denied, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). The Veteran filed a claim for service connection for left ear hearing loss in March 2006. This claim was denied in August 2006. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. At the time of the August 2006 rating decision, the evidence before the RO consisted of the Veteran's service records and a statement by the Veteran. Since that time, the Veteran has submitted medical records showing a current diagnosis of bilateral hearing loss and has been service-connected for tinnitus. The Veteran's friend also testified before the Board that the Veteran had hearing issues in 1972. In determining whether newly-received evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When credibility is presumed, the aforementioned evidence suggests that the Veteran has left ear hearing loss that is related to service. As the evidence was not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claims, the Board finds that the additional evidence is new and material to reopen the Veteran's claim of service connection for left ear hearing loss. The claim is granted to this extent only. Service Connection Laws and Regulations Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 ; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established by presumption pursuant to 38 C.F.R. § 3.303(b). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In this case, hearing loss is included among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of 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. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Id. If a condition noted during service is not shown to be chronic then, generally, a showing of "continuity of symptoms" after service is required. Id. Presumptive service connection may also be established for certain chronic diseases, including hearing loss, where a veteran had ninety days or more of active service and the disorder manifested to a degree of ten percent or more within one year from separation of service. Such diseases shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. § 3.307. Before deciding a claim, the Board is required to evaluate all relevant evidence on appeal, including lay and medical evidence. See 38 U.S.C.A. § 7104(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Lay evidence may be competent and sufficient to establish a claim for service connection. Specifically, lay evidence may be 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, 1376-77 (Fed. Cir. 2007). Moreover, a layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a veteran is competent to report on that of which he or she has personal knowledge). The Board must then determine whether the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of the relevant evidence, the Board must weigh its probative value. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Left Ear Hearing Loss Analysis The Veteran contends that his current left ear hearing loss is related to service. Specifically, he stated in the March 2016 Board hearing that he fell off a tank due to a gun blast during Advanced Infantry Training (AIT) in 1967, which caused injury to his hearing, back, and head. He testified that he sought treatment for these injuries. He further stated that he was exposed to military noise during service without hearing protection. The Veteran's friend, Ms. H, testified that she had known the Veteran since 1972 and that he has had hearing issues since that time. She testified that the Veteran related his hearing issues to the tank incident in service. Retired Navy service member, B.K., submitted a statement in support of the Veteran's claims. He contended that the Veteran has complained about headaches and hearing loss "since his return and as far back as [he could] remember." He also stated that the Veteran takes pain medicine for migraine headaches and the Veteran told him he did not undergo a hearing examination at separation. 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. 38 C.F.R. § 3.385. A VA audiology examination from January 2014 demonstrates that the Veteran's auditory thresholds for his left ear was 60 decibels at a frequency of 2000 hertz and the speech discrimination score for the left ear was 64 percent. Subsequent records show continuous treatment for hearing loss. Thus, there is current left ear hearing loss disability for VA compensation purposes. The Board finds, however, that the Veteran is not entitled to presumptive service connection for his left ear hearing loss. The Veteran's service records, which appear to be complete, are associated with the file. The Veteran's audiological examination at separation was normal. While the treatment records show treatment for a cold, a sore throat, and a rash on his hands, among other injuries and illnesses, they do not show treatment for or complaints of hearing loss. Importantly, they do not document that the tank incident occurred, nor do they show treatment for or complaint of any injuries stemming from the tank incident, including injuries to his back or head. While the Veteran's service records do show that he was treated for lower back pain twice, they were unrelated to a tank incident. For example, he was treated once in October 1966 for an injury following basic training and again in August 1967, when the Veteran stated he had trouble with back pain since before service. The tank incident was not mentioned in either record. The Board finds that the Veteran's service treatment records, which appear to be complete, are probative evidence that he did not experience symptoms of left ear hearing loss. The Veteran contends that his separation physical is either a fabrication or belongs to another service member. In support of this contention, the Veteran argues that he did not undergo a physical examination at separation and that there is a discrepancy between his height and weight at entrance into service and the height and weight listed on his separation examination. At entrance, his height was 67 inches and weight was 133 pounds. At separation, his height was listed as 69 inches and his weight was listed as 157 pounds. The Veteran argues that he never weighed that much and the height discrepancy proves that the separation examination does not belong to him. The Veteran testified before the Board, however, that his current height was 70 inches, which is closer to the Veteran's height at separation rather than at entrance. Moreover, the Veteran's separation examination contained the same military identification number that was used on the entrance examination, and the print is the same for both pages of the separation examination report. The Veteran's contentions do not demonstrate that the separation examination was fabricated nor wrongly accorded to him, and there is no other evidence that supports his contentions. While there is no accompanying report of medical history filled out by the Veteran, this does not mean that the Veteran did not undergo a separation examination. Thus, the Board finds that the separation examination is credible evidence. In light of the medical and lay evidence, the Board finds that symptoms of left ear hearing loss were not chronic in service or continuous after service separation, and that his left ear hearing loss did not manifest to a compensable degree within one year of service separation. The Veteran's hearing and ears were evaluated as normal at separation from service, and the Veteran testified that he did not seek medical treatment for his hearing loss until 2005, almost forty years after separation from service. Although Ms. H testified that the Veteran complained of hearing issues as early as 1972, Ms. H's testimony is not competent evidence that the Veteran's hearing loss manifested to a compensable degree within one year after service separation. Thus, the Board finds that the Veteran is not entitled to presumptive service connection. That does not end the inquiry, however. Service connection can still be granted on a direct basis for a disability that begins after service if it is related to an in-service disease or injury. The Board finds, however, that the Veteran's hearing loss claim does not warrant direct service connection as the evidence does not demonstrate it is related to service. Specifically, the Board relied on two VA examinations in making its determination. The Veteran was afforded a VA hearing loss examination in February 2013. The examiner diagnosed bilateral sensorineural hearing loss and concluded that she could not provide a medical opinion regarding the etiology of the hearing loss without resorting to mere speculation. The examiner noted that both induction and separation audiograms were normal but opined that the current examination results may have been impacted by "a suspected non-organic component." The Veteran was afforded a second VA hearing loss examination in January 2014. The examiner diagnosed bilateral sensorineural hearing loss and concluded that the hearing loss was less likely than not related to service. The examiner based this conclusion on the Veteran's entrance and separation examinations, which revealed normal hearing sensitivity at time of separation and no significant change in hearing thresholds during service. The Board finds that the VA conclusions are probative evidence that the Veteran's hearing loss is not related to service. The Board also considered the Veteran's claims that his hearing loss is related to the in-service tank incident. The Veteran's statements that he experienced hearing loss in service due to the tank incident are not credible and are contradicted by the contemporaneous medical records. The service records show treatment for many minor illnesses, but do not document complaint of or treatment for hearing issues or any back or head injuries stemming from the tank incident. Additionally, the service records show normal hearing upon separation from service and do not show a significant change in thresholds between entrance and service. The Board further considered other supporting statements that the Veteran's hearing loss began shortly after service separation, including Ms. H's testimony that the Veteran had hearing issues in 1972. The Board finds, however, that the Veteran's service treatment records and VA opinions are more probative that the Veteran's current hearing loss is not related to service. First, the evidence shows the Veteran had normal hearing at separation from service, only four years prior to 1972. Second, the Veteran testified that he did not seek treatment for his hearing loss until 2005, almost forty years following service separation, despite seeking treatment for other conditions, including migraines. Third, Ms. H related the Veteran's hearing loss to service based on the Veteran's statements, which the Board has determined are not credible in light of contemporaneous medical evidence. Thus, the Board finds that the other evidence outweighs Ms. H's testimony and other supporting statements that the Veteran had hearing issues related to service. In light of the evidence, including the Veteran's service records, post-service medical history, the Veteran's statements, and other supporting lay statements, the Board finds that his left ear hearing loss is not related to service. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply and service connection for left ear hearing loss is denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Service Connection for a TBI Analysis The Veteran contends that he incurred a TBI in service and currently has residuals that are related to the in-service TBI. Specifically, he stated in the March 2016 Board hearing that he fell off a tank due to a gun blast during Advanced Infantry Training (AIT) in 1967, which caused injury to his hearing, back, and head. He testified that he went to the dispensary for pain medication and experienced constant migraines. He also contended that, as a result of his injuries, he was prevented from serving in the Republic of Vietnam. The Veteran intended on providing a supporting statement from a service member, E.T., with whom he trained. The Veteran provided evidence showing that E.T. unfortunately passed away before he could obtain a statement. Retired Navy service member, B.K., submitted a statement in support of the Veteran's claims. He contended that the Veteran has complained about headaches and hearing loss "since his return and as far back as [he could] remember." He also stated that the Veteran constantly takes pain medicine for migraine headaches. The Veteran's service records, which appear to be complete, are associated with the file. The Veteran's separation examination was normal. While the treatment records show treatment for a cold, a sore throat, and a rash on his hands, among other injuries and illnesses, they do not show treatment for or complaints of migraines or headaches. The records also do not document that a tank incident occurred or that the Veteran was injured in the accident. The Veteran's service records do show that he was treated for lower back pain twice: once in October 1966 following basic training and again in August 1967, when the Veteran stated he had trouble with back pain since before service. The tank incident was not mentioned in either record. Importantly, the Veteran's records do not show that he was physically unfit to serve in the Republic of Vietnam or that his physical profile was downgraded at any time in service. Instead, the Veteran's separation examination indicates that he had a normal physical profile at separation. As noted above, the Veteran contends that his separation physical is either a fabrication or belongs to another service member. The Board finds, however, that the separation examination is credible evidence. The Veteran testified that he was treated at a private medical facility for migraines after service, including taking a pain medication called Darvon, but the medical records were destroyed in 1984. He established care at VA in 2005, and his medical records from 2005 to April 2016 are associated with the file. They do not show treatment for migraines, headaches, or other residuals of a TBI, nor do they document that the Veteran incurred a TBI. In March 2016, the Veteran underwent a CT scan that shows mild cerebral hemorrhage, but the etiology is not noted. In consideration of the medical and lay evidence, the Board does not find that the Veteran incurred a TBI in service. The Board relied on the Veteran's service treatment records and current VA medical records in making this determination. Specifically, despite documenting treatment for numerous minor illnesses, the Veteran's service records do not show treatment for or complaints of migraines, other injuries stemming from the tank incident, nor the tank incident itself. The report of medical examination did not document migraines or headaches at separation. Although the Veteran testified that he was treated for migraines after service and those records were destroyed, the available VA records, which span 2005 to the present, do not show any treatment for migraines or headaches. Moreover, they do not document a TBI occurred or treatment for residuals of a TBI. The only relevant VA record is the March 2016 CT scan that shows mild cerebral hemorrhage, but does not provide any other details, including etiology. Moreover, the CT scan took place almost fifty years after the Veteran separated from service. Thus, the Board finds that the Veteran's statements that he incurred a TBI and experienced migraines in service are not credible and are otherwise outweighed by the contemporaneous and current medical evidence. The Board considered B.K.'s supporting lay statement that the Veteran has complained of headaches since his return. The Board finds, however, that the Veteran's service treatment records and VA medical records are more probative that the Veteran did not incur a TBI in service. First, service records do not document treatment for migraines or complaints of injuries stemming from a tank incident. Second, the Veteran's separation examination was normal. Third, the Veteran testified that he sought treatment for his migraines following service, but those records were destroyed. His VA medical records, however, do not show any treatment for migraines or a TBI until after he filed his claim for VA compensation. Thus, the Board finds that the other evidence outweighs B.K.'s supporting statement that the Veteran incurred a TBI in service. In light of the evidence, including the Veteran's service records, post-service medical history, the Veteran's statements, and other supporting lay statements, the Board finds that the Veteran did not incur a TBI in service. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply and service connection for left ear hearing loss is denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants. VA's duty to notify was satisfied by a letter sent in November 2012. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim, which includes providing an adequate medical examination or opinion when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159. A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations, and describes the disability in sufficient detail to enable the Board's evaluation to be fully informed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that VA has satisfied its duty to assist. The claims file contains the Veteran's service treatment records, VA medical treatment evidence, and supporting lay statements. The Veteran was also afforded VA examinations in February 2013 and January 2014. The medical opinions are adequate because they were based on an accurate review of the Veteran's record, history, and symptomatology and included rationales. Although the Veteran was not afforded a VA examination for his TBI claim, the Board finds that the threshold for providing a medical examination was not met in this case. VA is obligated to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the evidence does not suggest that the Veteran has a TBI that is related to service. Specifically, the Board found that the Veteran's statements regarding injuring his head and obtaining treatment in service lacked credibility. Additionally, despite years of VA medical treatment, he did not complain of chronic headaches or report TBI. Therefore, even under the low threshold of McLendon, an examination is not warranted. The Veteran provided testimony at a Board hearing in March 2016. During such a hearing, a Veterans Law Judge has a duty to fully explain the issues and suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In the present case, the Veterans Law Judge clearly set forth the issues to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information as to the dates and locations of treatment when appropriate. The hearing focused on the elements necessary to substantiate his claims and the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim. The Board finds that VA complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and Bryant. Finally, all due process considerations have been met. Following the May 2015 Board decision and March 2016 Board hearing, the Veteran submitted new evidence that was pertinent to his claim, along with a waiver of initial consideration by the RO. Although other medical evidence was also associated with the record, the evidence was related to the Veteran's pending claims for service connection for right ear hearing loss and low back injury. For these reasons, the Board is satisfied that VA has fulfilled its duties to notify and assist, as required by the VCAA. ORDER The claim for service connection for left ear hearing loss is reopened. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for residuals of a TBI is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs