Citation Nr: 1753597	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  14-05 041	)	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 submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for tinnitus. 


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Spitzer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1995 to December 1995, October 2003 to December 2005, and from April 2009 to June 2010.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  That rating decision determined that new and material evidence had been presented to reopen the bilateral hearing loss claim.  However, regardless of that determination, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of the previously denied bilateral hearing loss claim.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).

In November 2016 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record. 

In December 2016, the Veteran submitted a private treatment record and did not waive initial Agency of Original Jurisdiction (AOJ) consideration of this evidence.  As the substantive appeal in this case was received in February 2014, and as the Veteran has not explicitly requested AOJ consideration of this evidence, a waiver of this additional evidence is not necessary, and the Board may properly consider all additional evidence submitted.  See 38 U.S.C. § 7105(e) (2012).  


VETERAN'S CONTENTIONS

The Veteran contends that he suffers from hearing loss as the result of in-service noise exposure, including from aircraft traffic, detainee interrogations, and mortar fire.  He testified that his hearing loss causes frustration and that his wife has noticed his decreased hearing.  Concerning his tinnitus, he asserts that he has experienced tinnitus since his active service in Afghanistan in 2004.  


FACTUAL FINDINGS

1. The Veteran's claim seeking entitlement to service connection for bilateral hearing loss was previously denied in a February 2011 rating decision.  New and material evidence was not received within a year of notice of the decision.  See 38 C.F.R. § 3.156(b).  The Veteran did not initiate an appeal of this decision and it became final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.   

2. The evidence considered at the time of the February 2011 rating decision consisted of the Veteran's service treatment records and a September 2010 VA examination report.  The claim was denied because the Veteran did not have a current hearing loss disability for VA purposes.

3. The evidence added to the record since that time includes a July 2012 VA examination report.  Since such evidence relates to an unestablished fact necessary to substantiate the claim, namely, a current bilateral hearing loss disability, it is new and material, and the claim of entitlement to service connection for bilateral hearing loss is reopened.  

3. The only audiometric findings valid for rating purposes come from the September 2010 and July 2012 VA examinations.  The findings from these examinations do not meet the criteria for a hearing loss disability for either ear under 38 C.F.R. § 3.385.  See September 2010 and July 2012 VA examination reports.  The Veteran does not contend that his hearing loss has worsened since the most recent VA examination.  

4. The findings of a November 2016 audiogram conducted in conjunction with a workplace wellness examination are not valid for rating purposes because the audiogram did not include the Maryland CNC speech discrimination test in accordance with 38 C.F.R. § 4.85.  Even assuming, for the sake of argument, that the Maryland CNC test was used, the audiometric findings from that audiogram do not meet the criteria for a hearing loss disability for either ear under 38 C.F.R.         § 3.385.  

5. The Veteran does not have bilateral hearing loss for VA purposes.  

6. Competent and credible evidence indicates the Veteran's tinnitus was incurred in service.


 LEGAL CONCLUSIONS

1. New and material evidence has been submitted, and the claim of entitlement to service connection for bilateral hearing loss is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

2. The criteria for establishing service connection for bilateral hearing loss are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

3. The criteria for establishing service connection for tinnitus are met.  38 U.S.C.   §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A. Bilateral Hearing Loss

As noted, the claim of entitlement to service connection for bilateral hearing loss is reopened because new and material evidence has been added to the claims file since the last final denial, namely, the July 2012 VA examination report.  

As the Board has determined that new and material evidence has been submitted, it is necessary to consider whether the Veteran would be prejudiced by the Board proceeding to a decision on the merits on the bilateral hearing loss claim.  In this case, the January 2014 statement of the case (SOC) provided the Veteran with the laws and regulations pertaining to consideration of the claim on the merits.  Additionally, the Board notes that the discussion in the SOC considered the Veteran's claim on the merits.  Also, the Veteran has provided arguments addressing his claim on the merits.  The Board therefore finds that, given that the Veteran had adequate notice of the applicable regulations, he would not be prejudiced by the Board's review of the merits of the bilateral hearing loss claim at this time.  See Bernard v. Brown, 4 Vet. App. 384 (1993).        

After a careful review of the record, the Board finds that the most probative evidence, notably the September 2010 and July 2012 VA examination reports,  indicates that the Veteran does not have a current hearing loss disability as defined in 38 C.F.R. § 3.385.  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C. § 1110.  In the absence of proof of a current bilateral hearing loss disability, service connection for that disability cannot be established.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

The Board acknowledges the Veteran's reports that he was subjected to in-service noise from aircrafts, detainees, and weapons and has experienced hearing loss since service.   These statements, however, relate to the in-service and nexus elements of the Veteran's claim of entitlement to service connection; they do not establish the presence of a current hearing loss disability.  Thus, they are of little probative value.  

The Board has considered the Veteran's and his wife's reports of hearing loss.  However, such reports do not constitute competent evidence of a hearing loss disability, as the record does not reflect that they contain the requisite audiological expertise to diagnose such.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting a lay person's general competence to testify as to symptoms but not to provide medical diagnosis).  Medical expertise along with appropriate audiological testing is required to confirm the presence of hearing loss.
The Board has also considered the decisions of the Court of Appeals for Veterans Claims in McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim) and Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013) (considering the application of McClain to a situation in which a disability manifests prior to the filing of a claim for VA benefits and then resolves before the claim is adjudicated).   Here, the Board has considered evidence dated prior to the filing of the Veteran's claim in January 2012, but has given great probative weight to the audiometric findings of record which do not reflect findings sufficient for a hearing loss disability as defined in 38 C.F.R. § 3.385.

In sum, there is no medical evidence of record showing the presence of a bilateral hearing loss disability for VA purposes; thus, the claim of entitlement to service connection for bilateral hearing loss must be denied.  The Board is grateful to the Veteran for his distinguished and honorable service, and regrets that a more favorable outcome could not be reached.  

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

B. Tinnitus

The record reflects a current diagnosis of tinnitus.  Specifically, in July 2012  
a VA clinician examined the Veteran and noted his report of tinnitus.  When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002).  Therefore, the remaining inquiry is whether the Veteran's current tinnitus is related to service.

When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service.  See Barr, 21 Vet. App. at 305.  If it does, such testimony is sufficient to establish service connection.  Id.  Here, the Board finds the Veteran's reports of the in-service onset of his tinnitus and its continuation thereafter both competent and credible.  Further, the Veteran's statements also amount to evidence of continuity of symptomatology which would warrant consideration of 38 C.F.R. § 3.303(b), as well as the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a).

In light of the evidence of record, including the Veteran's competent and credible reports of tinnitus that has continued since service, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current tinnitus was incurred in service.  See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).  Accordingly, resolving all doubt in his favor, service connection is warranted.  38 U.S.C.            §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


ORDER

The claim of entitlement to service connection for bilateral hearing loss is reopened, and to this extent only the appeal is granted.

Service connection for bilateral hearing loss is denied. 

Service connection for tinnitus is granted.



____________________________________________
S. C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs