Citation Nr: 1752954 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 15-08 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for bilateral hearing loss, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a previously denied claim for service connection for tinnitus, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1964 to July 1964. The Veteran also had periodic service in the United States Army Reserves from 1964 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied reopening the Veteran's claims. The Veteran testified at a hearing before the Decision Review Officer at the Muskogee, Oklahoma Regional Office in October 2015. The Board has reviewed this evidence and will address the Veteran's contentions in the current decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The September 2008 Board decision which denied service connection for bilateral hearing loss is final; however, evidence received since that rating decision is new, material, and raises a reasonable possibility of substantiating the hearing loss claim. 2. The weight of the evidence is against a finding that the Veteran's bilateral hearing loss disability is etiologically related to service. 3. The September 2008 Board decision which denied service connection for tinnitus is final; however, evidence received since that rating decision is new, material, and raises a reasonable possibility of substantiating the tinnitus claim. 4. The weight of the evidence is against a finding that the Veteran's tinnitus disability is etiologically related to service. CONCLUSIONS OF LAW 1. The September 2008 Board decision denying service connection for bilateral hearing loss is final; however, the criteria for reopening that claim have been met. 38 U.S.C. §§ 5108, 7105(c) (West 2012); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302, 20.1103 (2017). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 3. The September 2008 Board decision denying service connection for tinnitus is final, however, the criteria for reopening that claim have been met. 38 U.S.C. §§ 5108 , 7105(c) (West 2012); 38 C.F.R. §§ 3.104 (a), 3.156, 3.159(c)(4), 3.160(d), 20.200, 20.302 (2017). 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137 (West 2012); 38 C.F.R. §§ 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2017). The claim for entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing 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 a claim. In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Bilateral hearing loss and Tinnitus In September 2008, the Board denied service connection for bilateral hearing loss and tinnitus. The Board found that the Veteran had a current diagnosis of tinnitus and bilateral hearing loss. The Board found that the Veteran was likely exposed to acoustic trauma in service based on his MOS as a mechanic assistant. It noted, however, that the Veteran's service records were absent for any complaint or treatment of hearing loss or tinnitus in-service or within the one year presumptive period. Moreover, it found that the record was absent for any positive nexus associating the Veteran's bilateral hearing loss or tinnitus with in-service noise exposure. In addition, the Board relied on a May 2008 VA audiology opinion which found it was less likely than not that the Veteran's hearing loss and tinnitus were related to service citing medical literature which suggested that late-onset hearing loss was unlikely. As the Veteran did not appeal or seek reconsideration of the Board decision, and no other exception to finality applies, that decision is final as to the evidence then of record. 38 U.S.C.§ 7104 ; 38 C.F.R. § 20.1100 . The evidence received since the prior final denial includes the Veteran's testimony from an October 2015 hearing before the DRO, medical treatment records involving treatment for the Veteran's bilateral hearing loss and tinnitus conditions, and a positive medical opinion relating the Veteran's hearing disabilities with his service. In short, this evidence is both new and material and accordingly, the Board will reopen the claim and consider it on the merits. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Presumptive service connection may be granted for "chronic diseases" if the disease manifests to a compensable degree within service or within the presumptive period of one year after separation. 38 C.F.R. § 3.307 (a)(3). Sensorineural hearing loss is categorized as a chronic "organic disease of the nervous system." 38 U.S.C. § 1101; 38 C.F.R. § 3.309 (a). The Board finds that the competent, credible, and probative evidence weighs against a finding that the Veteran's bilateral hearing loss and tinnitus is etiologically related to his active service. With respect to the Veteran's contentions that he has been experiencing bilateral hearing loss and bilateral tinnitus since service, the Board finds that the Veteran's lay statements are outweighed by the negative service, post-service treatment records (indicating hearing loss that began many years after service), and negative VA medical opinions. The Board has considered the Veteran's own statements regarding his hearing loss and tinnitus. However, he has not demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical diagnosis or an etiology opinion on the onset of his bilateral hearing loss or tinnitus. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, etiology opinions on relating delayed-onset hearing loss and tinnitus to service fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372. With regard to the medical opinion evidence of record, the March 2010 VA examiner reviewed the Veteran's service treatment records, post-separation treatment records relating to bilateral hearing loss and tinnitus, examined the Veteran, and applied current empirical literature in support of his negative etiology opinion which failed to find a nexus between the Veteran's hearing disabilities and his service. The examiner pointed to the delayed onset of the Veteran's hearing disability, which was not diagnosed until almost 20 years after separation. On the contrary, the January 2009 etiology opinion which noted that "at least some of the Veteran's current hearing loss began and continued through his military service;" does not provide a rationale for its determination. Given such, the Board finds the March 2010 opinion more probative as it was based on the complete record and was based on empirical literature in the field of audiology which suggests that late-onset hearing loss is not likely. As such, service connection for bilateral hearing loss and tinnitus is not warranted. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs