Citation Nr: 1754904	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  17-40 804	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

1.  Whether new and material evidence has been received to reopen a claim for entitlement service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Buck Denton, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1952 to August 1953.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, that reopened the Veteran's claim for service connection for bilateral hearing loss but denied the claim on its merits, and denied service connection for tinnitus.  

Regarding the Veteran's claim of service connection for bilateral hearing loss, although the RO reopened this claim in the June 2016 rating decision, the question of whether new and material evidence has been received to reopen such claims must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant.  Barnett, 83 F.3d at 1383.  The Board has characterized the claim accordingly.

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. An unappealed January 2008 rating decision denied service connection for bilateral hearing loss based essentially on a finding that it was not incurred in or was aggravated by military service.  
2. Evidence received since the January 2008 rating decision that denied service connection for bilateral hearing loss is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim.

3. The evidence is in relative equipoise as to whether the Veteran's current bilateral hearing loss and tinnitus are related to in-service noise trauma.


CONCLUSIONS OF LAW

1.  The January 2008 rating decision that denied service connection for bilateral hearing loss is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2016).

2.  New and material evidence has been received since the January 2008 rating decision, and the claim for service connection for bilateral hearing loss is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.156 (2016).

3.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, 4.85 (2017).

4.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence

In general, VA rating decisions that are not timely appealed are final.  See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017).  A finally disallowed claim may be reopened when new and material evidence is secured with respect to that claim.  38 C.F.R. § 3.156 (2017).  "New" evidence is evidence not previously submitted to agency decision makers.  Evidence is "material" if it 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, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2017).

The Veteran's claim for service connection for bilateral hearing loss was denied in a January 2008 rating decision because the evidence did not show that the Veteran's bilateral hearing loss was etiologically related to his period of military service.  He did not appeal that decision, and it is now final.  Since then, evidence has been received showing that his bilateral hearing loss disability is etiologically related to his military service.  This evidence is new and material and raises the possibility of substantiating the claim, therefore it is reopened.

II.  Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110 (West 2014).  Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In addition, certain chronic diseases, including sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017).



III.  Analysis

The Veteran maintains that he has a current bilateral hearing loss disability and tinnitus, both of which are the direct result of noise exposure during active service.  The Veteran specifically asserts he developed hearing loss and tinnitus as a result of in-service exposure to traumatic noise during basic training and the performance of duties as a machinist and that these conditions have continued to worsen since service.

The Board notes that the Veteran's complete service record is unavailable because it was destroyed in a fire as noted in correspondences received in March 1996, May 2000, and April 2002.  When service records are unavailable through no fault of a veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule.  Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005).

In a correspondence received in January 2016, the Veteran stated that he participated in a firing range during basic training.  At that time, he was not advised and did not have to use ear protection.  He noted that he was exposed to noise from gunfire from his fellow trainees who were positioned very closely to where he fired his weapon.  He further reported that he experienced an auditory pathology in the form of ringing in the ears and decreased hearing acuity following exposure to the weapons fire.

Furthermore in his January 2016 correspondence, the Veteran reported working as a machinist to replace parts for damaged locomotives during his military service.  He noted that he used a tungsten cutting bit that produced a high shrieking sound that would affect his ears while he was working.  Additionally, he noted that he was exposed to noise from machines working around him.  The machine shop did not advise him to wear ear protection.

With respect to an in-service event, on September 2, 2010, VA issued Fast Letter 10-35, Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus.  This letter introduced the Duty MOS (military occupational specialties) Noise Exposure Listing, a rating job aid for determinations regarding service connection for hearing loss and/or tinnitus.  The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of MOSs and the corresponding probability of hazardous noise exposure.  Based on a veteran's records, each MOS documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing.  If the MOS is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing an in-service event with respect to direct service connection.  The Board notes that Fast Letter 10-35 was rescinded due to its incorporation into the VA Adjudication Procedures Manual (M21-1) and that substantively similar information is included in the M21-1. See M21-1, Part III, Subpart iv, Chapter 4, Section B, 4.e.

As the Veteran noted in his January 2016 correspondence, his DD 214 notes a significant duty assignment in the Train Shop Battalion with a MOS code of 1114 and training as a machinist.  Comparing this MOS to the Duty MOS Noise Exposure Listing, while the Veteran's exact MOS is not listed, a MOS of Metal Worker is listed as having a high probability of exposure to hazardous noise.  The MOS of Metal Worker appears to be comparable to the Veteran's MOS of a Machinist, and he noted that he worked with metal.  Additionally, the Board notes that any MOS related to working as a mechanic also carries a high probability of exposure to hazardous noise.  As such, an in-service event, specifically exposure to hazardous noise, is conceded.

The Veteran has been diagnosed with both bilateral sensorineural hearing loss and bilateral tinnitus at a May 2016 VA audiological examination.  The audiogram shows that the Veteran has a current bilateral hearing loss disability for VA purposes.  The Veteran had puretone threshold levels greater than 40 decibels at 2000, 3000, and 4000 Hertz with a speech recognition score on the Maryland CNC test of 72 percent in the right ear and puretone threshold levels greater than 40 decibels at 1000, 2000, 3000, and 4000 Hertz with a speech recognition score on the Maryland CNC test of 60 percent in the left ear.  See 38 C.F.R. § 3.385 (2017) (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, 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.); Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  Additionally, the May 2016 examiner noted a diagnosis of recurrent tinnitus.

The Board further notes that the Veteran's August 1953 separation examination is silent for complaints of bilateral hearing loss or tinnitus.  Nevertheless, the Veteran has reported that he first experienced an auditory pathology, including decreased hearing acuity and tinnitus, during his active service, and that his auditory symptoms have progressively worsened since that time.  See Hensley, 5 Vet. App. at 159-160 (holding that, when audiometric test results do not meet the regularity requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service).

The Veteran is competent to report experiencing an in-service injury and resultant diminished hearing and additional auditory pathology in the form of tinnitus because hearing loss and tinnitus are conditions with unique and readily identifiable features that are capable of lay observation.  See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d 1313.

Importantly, the Veteran's available service personnel records show that he was trained as a machinist and worked in a train shop.  The Veteran further described his work in the military within a July 2016 Statement in Support of Claim.  He noted that he worked in a machine shop making large pistons for locomotive engines, which were made of steel.  He went on to note that the boring machine made a loud shrieking noise as it cut into the steel, which he did for hours each day.  Additionally, the Veteran's wife submitted a statement noting that her husband experienced diminished hearing acuity immediately following separation from service.  See Jandreau, 492 F.3d 1372; Washington, 19 Vet. App. 362; see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).

Accordingly, the Board finds the Veteran's account of experiencing in-service noise trauma and auditory symptomatology to be credible and consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a) (West 2014); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Additionally, the Board finds the Veteran to be credible in his report of having auditory symptomatology since service.  Thus, there is competent and credible lay evidence of record that bilateral hearing loss and tinnitus occurred following acoustic trauma during active service and have continued to progress since that time.

The Board acknowledges there is a negative etiological opinion of record in the form of the May 2016 VA audiological examination report.  However, the Board declines to accept this opinion, as it failed to adequately address the Veteran's lay assertions of traumatic noise exposure and onset of auditory symptomatology, which the Board has found to be competent and credible.  See Nieves-Rodriguez, 22 Vet. App. at 304 (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning).  Importantly, while the VA examiner opined that the Veteran's bilateral hearing loss disability was not due to military noise exposure, the examiner failed to identify any alternate etiology for his symptoms, which, as discussed, the Veteran credibly reported arose during his active service.  See id.  Additionally, in opining that the Veteran's bilateral hearing loss and tinnitus were not due to military noise exposure, the examiner based the negative opinion primarily upon the absence of documented hearing loss upon separation.  In this regard, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.  Hensley, 5 Vet. App. 155.  Ledford v. Derwinski, 3 Vet. App. 87 (1992) (lack of documented hearing loss while in service is not fatal to a claim for service connection.).  As a result, the May 2016 VA medical opinion forms an inadequate foundation upon which to base a denial of entitlement to service connection for bilateral hearing loss and tinnitus.

Rather, the Veteran has competently and credibly reported a continuity of symptomatology of bilateral auditory pathology in the form of tinnitus and decreased hearing acuity during and since active service.  Charles v. Principi, 16 Vet. App. 370 (2002); Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001).  This report of a continuity of symptomatology suggests a link between his current bilateral hearing loss and tinnitus and active service.  Duenas v. Principi, 18 Vet. App. 512 (2004).

Accordingly, in absence of any probative evidence to the contrary, the Board finds that the evidence for and against the claims is at least in equipoise.  When the evidence for and against the claim is in relative equipoise, the Board must resolve all reasonable doubt in favor of the Veteran.  Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss and tinnitus is warranted.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017).


ORDER

The appeal to reopen a claim of service connection for bilateral hearing loss is granted, and service connection for bilateral hearing loss is also granted.

Service connection for tinnitus is granted.




____________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs