Citation Nr: 1800236 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-29 893 ) 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 a claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel INTRODUCTION The Veteran had active service from August 1962 to June 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2016, the Veteran testified during a Board hearing before the undersigned. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. By a decision entered in August 2007, the RO denied the Veteran's claim for service connection for bilateral hearing loss; he was advised of the decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO's August 2007 decision during the one year period following the mailing notice of that decision; nor was new and material evidence received within a year. 3. New evidence received since the time of the RO's August 2007 decision, when considered with the evidence previously of record, relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim. 4. The Veteran's bilateral hearing loss is a result of his in-service noise exposure. 5. By a decision entered in August 2007, the RO denied the Veteran's claim for service connection for tinnitus; he was advised of the RO's decision, and of his appellate rights. 6. The Veteran did not initiate an appeal of the RO's August 2007 decision during the one year period following the mailing notice of that decision; nor was any new and material evidence received within a year. 7. New evidence received since the time of the RO's August 2007 decision, when considered with the evidence previously of record, relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for tinnitus and raises a reasonable possibility of substantiating the claim. 8. The Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The RO's August 2007 decision, denying service connection for bilateral hearing loss, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104; 20.302, 20.1103 (2017). 2. New and material evidence has been received since the time of the RO's August 2007 decision that is sufficient to reopen the Veteran's claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110, 1112, 1131, 1137 (2012); 38 C.F.R. § 3.307, 3.309 (2017). 4. The RO's August 2007 decision, denying service connection for tinnitus, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.302, 20.1103. 5. New and material evidence has been received since the time of the RO's August 2007 decision that is sufficient to reopen the Veteran's claim for service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110, 1112, 1131, 1137; 38 C.F.R. § 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "A must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. §§ 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Bilateral Hearing Loss (NME) In December 2017, VA received a VA medical advisory opinion from Dr. B.P. The opinion offered was "it is at least [a] 50/50 probability that [the Veteran's hearing loss] was caused by noise in the service." See December 2017 VHA Opinion Letter. The Board concludes that this evidence is new, in that it was not before the RO when the Veteran's claim was previously denied. It is also material in that it relates to unestablished facts necessary to substantiate the claim (i.e., that the Veteran's bilateral hearing loss, is a result of his active service), and, presuming its credibility for new and material evidence purposes, raises a reasonable possibility of substantiating the claim. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). It is therefore new and material. The claim for entitlement to service connection for bilateral loss is reopened. Tinnitus (NME) In April 2016, the Veteran testified before the undersigned that he first noticed sound in his ears during his active service. "Oh, I would catch it sometimes after we'd get off the airplane. There sometimes I'd have a little bit." See April 2016 Hearing Transcript at page 7. In the December 2017 VA medical advisory opinion, Dr. B.P. stated "It is my opinion that airplane noise could easily have added to the preexisting tinnitus that the [Veteran] mentioned." See December 2017 VHA Opinion Letter. The Board concludes that this evidence is new, in that it was not before the RO when the Veteran's claim was previously denied. It is also material in that it relates to unestablished facts necessary to substantiate the claim (i.e., that the Veteran's tinnitus, is a result of his active service), and, presuming its credibility for new and material evidence purposes, raises a reasonable possibility of substantiating the claim. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). It is therefore new and material. The claim for entitlement to service connection for tinnitus is reopened. Service Connection Service connection requires competent evidence showing: (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). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic disease of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017). Bilateral Hearing Loss (SC) A May 2011 VA audiological examination, demonstrates a current diagnosis of bilateral hearing loss as defined by VA. 38 C.F.R. § 3.385. The RO has conceded the Veteran's in-service noise exposure. See July 2015 Supplemental Statement of the Case at page 4. Therefore, the remaining inquiry is whether the Veteran's current bilateral hearing loss is related to his in-service noise exposure. The Veteran was afforded a VA audiogram in February 2007. This examination showed the Veteran suffered hearing loss, for VA purposes, in his right ear but not in his left. The examination provided an opinion that the Veteran's current hearing loss disability was unrelated to his service. The examiner's rationale was that the Veteran reported normal hearing upon separation from the military. The examiner cited a 2005 Institute of Medicine study and found that "there was no scientific basis for hearing normal at discharge and delayed or late onset noise inducing hearing loss being casually attributable to military noise exposure several years later." See August 2007 VA Audiology Examination at page 6. The Veteran had another VA audiogram in May 2011. This examination determined that the Veteran suffered from hearing loss, for VA purposes, in both his left and right ear. However, the VA examiner opined that the Veteran's bilateral hearing loss was less likely as not to have been caused by his active military noise exposure. The examiner's rationale was based on the Veteran's normal hearing exams throughout his active service. The December 2017 VA medical advisory opinion letter noted that the Veteran had minimal preexisting hearing loss prior to his active service. Dr. B.P. noted that the Veteran's hearing loss was increased due to his in-service noise exposure. The examiner opined that the Veteran's bilateral hearing loss was at least as likely as not to have been the result of his in-service noise exposure. The examiner stated "[The Veteran] was a navigator and bombardier and these cumulative noise experiences would very easily cause delayed hearing loss and tinnitus." See December 2017 VHA Opinion Letter. The examiner cited several articles which show that the delayed onset of hearing loss is quite possible given that "noise is additive with time." Id. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The May 2011 medical opinion is essentially founded in the absence or lack of any hearing loss experienced by the Veteran in service. As the evidence of record now reflects, through the Veteran's April 2016 testimony, he experienced problems with his hearing in service. Therefore, the Board finds this opinion inadequate and will afford it no probative value. Based on the evidence presented to VA in this case concerning this Veteran, the Board finds that the remaining competing medical opinions referenced above, which are both for and against the claim, are in equipoise, requiring that reasonable doubt be resolved in favor of the Veteran. See 38 U.S.C.A. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517 (2014). Therefore, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. Tinnitus (SC) Tinnitus is a disorder capable of lay observation. Charles v. Principi, 16 Vet App 370 (2002). Tinnitus is a disease of the nervous system and as such is a chronic disease under 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307, 3.309. The link between an in-service injury and the current disease can be established with evidence of a continuity of symptomatology. The Veteran has testified that he experienced a continuity of tinnitus symptoms following noise exposure in service. The Board sees no reason to question the credibility of these reports. Accordingly, the criteria for service connection for tinnitus are satisfied. (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been submitted, the petition to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is granted. New and material evidence having been submitted, the petition to reopen the claim of entitlement to service connection for tinnitus is granted. Service connection for tinnitus is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs