Citation Nr: 1756948	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  12-07 654	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
St. Petersburg, Florida


THE ISSUES

1. Whether new and material evidence has been received to reopen the previously denied 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:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

Saudiee Brown, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to September 1972.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The Board previously remanded these matters in June 2016.

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in December 2016.  The Veteran's wife, D.F., was present as a witness.  A transcript of the hearing is of record.


FINDINGS OF FACT

1. An October 1975 RO decision denied service connection for bilateral hearing loss.  The Veteran was notified of his rights but did not appeal or request reconsideration.

2. New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened.

3. The evidence is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is causally related to service.

4. It is at least in relative equipoise as to whether the Veteran's tinnitus is causally related to service.

CONCLUSIONS OF LAW

1. The October 1975 RO decision which denied service connection for bilateral hearing loss is final.  38 U.S.C. § 7104 (West); 38 C.F.R. § 20.1100 (2017).

2. New and material evidence has been received since the October 1975 RO decision and the claim for bilateral hearing loss is reopened.  38 U.S.C.A. §§ 5108, 7105 (West); 38 C.F.R. § 3.156 (a)(2017).

3. The criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 5107 (b) (West); 38 C.F.R. §§ 3.102, 3.303 (2017).

4. The criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence

A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C. § 5108 (2002); 38 C.F.R. § 3.156 (2017).  Evidence is new if it has not been previously submitted to agency decision makers.  38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence cannot be cumulative or 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.  

The Court of Appeals for Veterans Claims (Court) interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).

By way of background, the RO initially considered and denied the Veteran's claim for service connection for bilateral hearing loss disability in an October 1975 rating decision.  The Veteran neither filed a notice of disagreement with this determination, nor did he submit new and material evidence within one year of the notification letter of the denials of his claim.  As such, the October 1975 decision is final.  38 U.S.C.A. § 4005 (c) (1970); 38 C.F.R. § 19.104 (1975).

In previously denying the Veteran's claim for service connection for a bilateral hearing loss disability in October 1975, the RO considered service treatment records.  In this respect, the service treatment records were silent for complaints, treatment or diagnosis of a bilateral hearing loss disability, and the separation examination showed the Veteran's hearing to be normal. 

In light of this, the Board finds that evidence received since the last adjudication, specifically the April 2010 VA examination establishing a nexus between the bilateral hearing loss and the Veteran's in-service noise exposure, addresses the unestablished facts from the previous denial.  This evidence, although not new as it was considered by the RO, is material since it addressed unestablished facts.  Therefore, given the new and material evidence, the Board may reopen the Veteran's claim for bilateral hearing loss.

Service Connection

In general, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A.  § 1110 (West 2014); 38 C.F.R. § 3.303 (2016).  To establish service connection for a disability, the Veteran must show: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C.A. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree (rated at least 10 percent disabling) 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.  In addition, the second and third elements of service connection may be established by showing continuity of symptomatology for chronic diseases specifically listed at 38 C.F.R. § 3.309 (a).  See 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).

Bilateral Hearing Loss

The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 (2016) need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.  This regulation does not necessarily preclude service connection for hearing loss that first meets the regulation's requirements after service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service.  38 U.S.C.A. §§ 1110 and 1131 (West 2014); C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60.  If medical evidence sufficiently demonstrates a medical relationship between the Veteran's in-service exposure to loud noise and his current disability, it would follow that the Veteran incurred an injury in service and the requirements of 38 U.S.C.A. §§ 1110 are satisfied.  Hensley, 5 Vet. App. at 160.

The Veteran asserts that his current bilateral hearing loss disability was incurred during service as a result of noise exposure, when he walked under a 5 inch turret that was fired.  The Board acknowledges that the service treatment records do not demonstrate that the Veteran had hearing loss as defined in 38 C.F.R. § 3.385.  Consequently, a VA examination with a medical opinion was obtained.

In April 2010, the Veteran was afforded a VA examination for his bilateral hearing loss and tinnitus claims.  The Veteran reported noise exposure in service.  The VA examiner opined that it was at least as likely as not that the Veteran's hearing loss and tinnitus was caused by or a result of military noise exposure.  The examiner reasoned that the Veteran clearly recalls having an incident under a 5 inch gun mount while in service where the gun went off and his hearing was decreased for three days in addition to having tinnitus in his ears for three days.  The examiner stated it was likely that such a blast could have caused some change in hearing acuity and since only a whispered test was performed at separation, the examiner could neither confirm nor deny for certain that such a change in hearing acuity occurred.  

In contrast to the April 2010 VA examiner's opinion, in February 2012, the VA examiner opined that the Veteran's right ear hearing loss was not permanently aggravated by military service and bilateral hearing loss and tinnitus were not caused by or a result of military service.  The examiner reasoned that the Veteran had occupational noise exposure levels and tobacco use and now other age-associated health concerns that could more than account for the current levels of hearing loss bilaterally.  Further, the examiner stated that the date and circumstances of tinnitus onset did not match the Veteran's military service period and circumstances of onset during military service.  The Board notes that the Veteran did not have right ear hearing loss prior to service, and thus the opinion on aggravation was inappropriate.

After considering the evidence of record, the Board finds that it is at least in equipoise that the Veteran's current bilateral hearing loss was related to the noise exposure he incurred during his period of active duty.  There is both negative and positive evidence.  Thus, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection for bilateral hearing loss is warranted.  See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107 (b) (West); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Tinnitus

The Veteran further contends that he has tinnitus that is due to in-service noise exposure.

First, the Board finds competent evidence that the Veteran currently suffers from tinnitus.  A layperson is capable of observing tinnitus.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  Here, the Veteran's reports of chronic and ongoing tinnitus are well-documented throughout the record, including in the Veteran's April 2010 VA examination, February 2012 VA examination, and August 2016 hearing transcript.  As such, the first Shedden element has been met.

Further, the Board finds competent evidence of in-service noise exposure, for those reasons set forth above.  The Veteran indicated at his August 2016 Board hearing that the ringing in his ears has persisted since service.  As the Veteran's reports of in-service events have been deemed competent by the Board, the second Shedden element has been met.  

Finally, the Board notes that there are again conflicting nexus opinions of record as stated above.  Thus, resolving the benefit of the doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether his tinnitus is causally related to service.  As such, service connection for tinnitus is warranted.  38 C.F.R. § 3.102; see also 38 U.S.C. § 5107 (b) (West); Gilbert, 1 Vet. App. at 53-56.


ORDER

Entitlement to service connection for bilateral hearing loss is reopened and granted.

Entitlement to service connection for tinnitus is granted.



JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs