Citation Nr: 1752595 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-24 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. FINDINGS OF FACT 1. A September 2007 rating decision denied service connection for bilateral hearing loss. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss and raises a reasonable possibility of substantiating that claim. 3. A September 2007 rating decision denied service connection for tinnitus. The rating decision was not appealed nor was new and material evidence received within the appeal period 4. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for tinnitus and raises a reasonable possibility of substantiating that claim 5. The Veteran was exposed to acoustic trauma during active military service. 6. Affording the Veteran the benefit of the doubt, his bilateral hearing loss is related to acoustic trauma during active military service. 7. Affording the Veteran the benefit of the doubt, his tinnitus is related to his bilateral hearing loss. CONCLUSIONS OF LAW 1. The September 2007 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (West 2017). 3. The September 2007 rating decision that denied service connection for tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. New and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (West 2017). 5. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 6. The criteria for service connection for tinnitus, to include as due to bilateral hearing loss, have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). Given the favorable disposition of the claims, the Board finds that all notification and development action needed to fairly adjudicate these claims has been accomplished. II. New and Material Evidence Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A (West 2014) shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108 (West 2014). See 38 U.S.C.A. § 5103A(f) (West 2014). Reopening a claim for service connection that has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108 (West 2014); Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a) (2017). 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. Id. 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. Id. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) (2017) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2014). Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). In reviewing the evidence added to the claims folder since the September 2007 denials, the Board finds that additional evidence has been received which is sufficient to reopen the Veteran's claims. At the time of the September 2007 denials, the Veteran had not submitted any private medical opinions that showed a nexus between his acoustic trauma during active service and his current bilateral hearing loss and tinnitus. However, in February 2012, August 2012, and July 2017, three separate audiologists provided opinions, finding that there was a relationship between the Veteran's acoustic trauma during service and his current hearing loss. Additionally, at the time of the September 2007 denials, the Veteran had not testified before a VLJ. In August 2017, the Veteran had a videoconference with a VLJ where he testified about his acoustic trauma during active service. This evidence was not before the RO in September 2007 and it is not cumulative or redundant evidence then of record. It raises a reasonable possibility of substantiating the Veteran's claims. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining that 38 C.F.R. § 3.156(b) (2014) contemplates additional development following reopening a claim in order to substantiate the claim). Accordingly, the Board finds that new and material evidence has been added to the record since the September 2007 decision and the claims must be reopened. III. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2017). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Under 38 C.F.R. § 3.310(a) (2017), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Under 38 C.F.R. § 3.385 (2017), disability due to impaired hearing, for the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 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 (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. IV. Analysis The Veteran contends that service connection is warranted for his hearing loss and tinnitus incurred due to acoustic trauma during active duty service. Affording the Veteran the benefit of the doubt, the Board agrees. As there is considerable overlap in the applicable evidence for the Veteran's appeals for entitlement to service connection for bilateral hearing loss and tinnitus, the Board will discuss both claims together. The Veteran satisfies the first threshold element of service connection, a current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In a May 2012 VA examination report, the Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. Affording the Veteran the benefit of the doubt, he satisfies the second threshold element of service connection, an in-service incurrence or aggravation of a disease or injury. Id., 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). According to the Veteran's DD Form 214, his military occupational specialty was as a military police officer. In the May 2012 examination report, the VA examiner noted that the Veteran was exposed to "hazardous noise levels" during active service. As such acoustic trauma during active service is conceded. Affording the Veteran the benefit of the doubt, he satisfies the third threshold element of service connection, a nexus between the claimed in-service disease or injury and the present disabilities. Id. In the May 2012 VA examination report, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 35 75 85 90 LEFT 15 30 45 55 60 The Veteran's speech recognition scores were 78 percent for the right ear and 88 percent for the left ear. This constitutes a hearing loss for VA purposes. The examiner opined that it was less likely than not that the Veteran's hearing loss and tinnitus were the result of military noise exposure. The rationale was that electronic hearing testing conducting at enlistment and at discharge showed that the Veteran did not have hearing loss while in active service and that there was no significant threshold shift beyond normal variability while in service. Based on this, the examiner opined that the Veteran's hearing loss and tinnitus were less likely than not caused by or a result of noise exposure while in service. The examiner did opine that the Veteran's tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss. The Board finds the May 2012 VA examiner's opinion to be of minimal probative value. The May 2012 VA examiner's opinion, which found no nexus between the Veteran's bilateral hearing loss and tinnitus with his active service, was based solely on the fact that the Veteran showed no hearing loss or threshold shift in hearing during active service. The Board notes that the U.S. Court of Appeals for Veterans Claims has stated that the proper inquiry in hearing loss cases is "whether or not any current hearing disability can be related to in-service noise exposure, not whether hearing loss was demonstrated in service." See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Additionally, the Board notes that the absence of documented hearing loss or tinnitus while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As a result, The Board finds the VA examiner's opinion to be inadequate. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, in a February 2012 letter, the Veteran's private audiologist noted that he had been treating the Veteran since December 2005, when the Veteran presented with significant bilateral high-frequency sensorineural hearing loss. Upon a review of the Veteran's personal account of his military history and duties while in Vietnam, the audiologist opined that it was at least as likely as not that the Veteran's current hearing loss was due to his acoustic trauma during active service. The rationale was that given the Veteran's duties, and the fact that he routinely fired M14 and M16 rifles, M79 grenade launchers, 0.50 caliber machine guns, and a 0.45 caliber hand gun, all without ear protection, it would seem likely that the intensity of the firearms exceeded 170dB SPL, which can cause hearing loss in less than one second of exposure. The audiologist explained that the intensity of an impulse noise at that level can cause damage to the internal structures of the cochlea, resulting in permanent hearing loss. In an August 2012 letter from a different private audiologist, the audiologist wrote that the Veteran had been a patient since 1999. The audiologist noted that the Veteran reported a history of high intensity noise exposure from military service in 1966 to 1968, when he was in Vietnam and was exposed to noise from shooting and other miscellaneous battle sounds. The audiologist noted that the degree of loss in the Veteran's right ear coincided with his report of shooting while in service. The audiologist opined that the Veteran's hearing loss was due at least in part to high intensity noise exposure, probably from military service. Finally, in a July 2017 letter, a third private audiologist noted that the Veteran reported an incident of acoustic trauma to his right ear, with subsequent tinnitus and decreased hearing during military service. The Veteran noted that his tinnitus had persisted since that time. The private audiologist opined that the asymmetric nature of the Veteran's hearing loss and presence of consistent tinnitus were both consistent with his report of acoustic trauma during active service. Although the VA examiner provided a negative nexus opinion, the Board finds that this opinion is outweighed by the three positive private audiologist nexus opinions, combined with the Veteran's competent and credible statements and testimony of continued hearing loss during active service. A veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) (2014) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence." See 38 U.S.C.A § 1154(a) (West 2014) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). Accordingly, the Board finds that it is at least as likely as not that service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.385 (2017). Additionally, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted as secondarily related to the Veteran's bilateral hearing loss. Id.; 38 C.F.R. § 3.310(a) (2017). As noted previously, the Veteran is currently diagnosed with tinnitus and the VA examiner opined that the Veteran's tinnitus was proximately caused by his now service-connected bilateral hearing loss. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim of entitlement to service connection for tinnitus, is reopened. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs