Citation Nr: 1800474 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 17-46 842 ) 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 received to reopen the claim of entitlement to service connection for bilateral hearing loss and tinnitus. 2. Entitlement to service connection for bilateral hearing loss and tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran had active military duty from August 1952 to July 1956. Review of the claims file reveals that a portion of the Veteran's service records were destroyed in a 1973 fire at the National Personnel Records Center (NPRC). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran's application for an advance upon the Board's docket was granted in December 2009. The case is ready for appellate review. In January 2010, the Board, inter alia, denied the Veteran's claim for service connection for bilateral hearing loss and tinnitus. 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. In a January 2010 Board decision, the Board denied the Veteran's claim to entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal the denial of his claim for entitlement to service connection for bilateral hearing loss and tinnitus or file a motion for reconsideration of the Board's decision. However, new and material evidence has been submitted since this decision. 2. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 3. Bilateral hearing loss and tinnitus was not shown in service or for many years thereafter, and competent, probative opinions that directly addressed the medical relationship, if any, between current bilateral hearing loss and service weigh against the claim. CONCLUSIONS OF LAW 1. The January 2010 Board decision is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has been received, and the claim of service connection for bilateral hearing loss and tinnitus is reopen. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156 (2017). 3. Hearing loss and tinnitus were not incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria for Reopening A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. As indicated above, the Veteran's claim for entitlement to service for bilateral hearing loss and tinnitus were most recently denied on the merits in a January 2010 Board's decision. The claims were denied because the evidence failed to show that the Veteran's bilateral hearing loss disability and tinnitus were related to service. The Veteran did not appeal the Board decision or file a motion for reconsideration. The relevant evidence of record at the time of the January 2010 Board's decision included the Veteran's July 2007 claim for compensation, a 1956 separation examination, a 2005 hearing test result, showing marked decrease in left ear pure tone sensitivity in the low to mid frequencies, a 2007 audio evaluation, a July 2008 private physician's statement, concluding that the Veteran's hearing loss and tinnitus were "at least in part" a result of exposure to loud noise during service, an April 2008 statement by the Veteran, and a December 2007 VA examination. Evidence included to the record subsequent to the January 2010 Board's decision consists of, in pertinent part, lay statements from the Veteran's spouse and friends, a January 2010 consult from Branson Health Audiology, prompted by complaint of possible decrease in hearing loss and constant high pitched tinnitus, and a January 2017 VA examination. The Board finds this evidence raises a reasonable possibility of substantiating the Veteran's claims because it supports a nexus between the Veteran's disabilities and his active duty service. Accordingly, reopening of the claims is in order. Legal Criteria for Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established under the provisions of 38 C.F.R. § 3.303 (b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The Veteran initially filed his claim for hearing loss and tinnitus in July 2007, nearly 51 years after he had separated from service. He contends that hearing loss and tinnitus must be related to acoustic trauma of his training during military service as an air policeman. The DD214 confirms his military occupation, and a certificate of three weeks' air police training documents that the Veteran fired rifles, pistols, machineguns and a shotgun during this training. 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, or 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. 38 C.F.R. § 3.385. As previously stated, the service medical records are unavailable, except the physical examination for service separation in July 1956. There was no pure tone testing on separation, however, voice testing showed normal hearing bilaterally. The Veteran does not contend, however, that he sought treatment or complained of hearing loss or tinnitus during military service, nor has the Veteran alleged that he sought treatment during service for any form of head or ear injury or trauma. Therefore, under these circumstances, the absence of the service treatment record may not be relevant. In the Veteran's July 2007 claim, he contended the onset of hearing loss and tinnitus during active service in 1955; however, he has not indicated seeking any medical treatment or evaluation for hearing loss or tinnitus until nearly 50 years following service separation. Written statement from an osteopathic doctor in July 2008 indicates that he had treated the Veteran since October 2005. The physician indicated that the Veteran informed him that he had fired various small arms in training as an air policeman during service. He opined that the Veteran's hearing loss and tinnitus "are at least in part" a result of exposure to loud noise during military service. With respect to post-service medical records, the first evidence of a diagnosis of hearing loss was an October 2005 hearing test from Branson ENT Practice which documented that the Veteran had been evaluated by this clinic "3 to 4 months following a sudden decrease in left ear hearing." The reference to a "sudden decrease" provides some evidence against this claim, indicating a problem that truly began many decades after service. As noted above, the Veteran's separation examination indicates that his bilateral hearing was normal, and there is no evidence to show that the Veteran hearing loss and tinnitus are related to his active military duty. Rather, the first medical evidence of such hearing loss was in 2005, approximately 50 years after the Veteran separated from service. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). By contrast, in a December 2007 opinion, a VA audiologist noted that the VA record included a copy of a 2005 hearing test from Branson ENT Practice and a 2007 evaluation. The VA examiner noted that the 2005 and 2007 tests showed a marked decrease in left ear pure tone sensitivity in the low to mid frequencies, accompanied by a significant decrease in word recognition scores from 88 percent to 12 percent. On examination, the Veteran stated that he had difficulty in all communication situations. He reported that his greatest difficulty is the loss of left ear hearing 3 years ago and being unable to use a hearing aid in the left ear since then. The Veteran also reported that he did not know he had a hearing problem at the time of discharge from service. The Veteran reported having problems in the 1980s, with a significant change in left ear hearing three years earlier. He reported that he saw an ENT at the time, and there was no medical history for familiar hearing loss, head trauma, ear trauma, or ototoxic drugs. When he was asked to provide the onset of tinnitus, the Veteran reported that he had had symptoms for a long time, estimating that it started "approximately 20 years ago (mid 1980s)." Significantly, the Veteran did not report recollection of tinnitus during service or as associated with acoustic trauma either during service or thereafter. Examination of the external and internal ears was unremarkable and there was no reported evidence of ear disease or chronic infection. The diagnosis was asymmetrical sensorineural hearing loss consistent with reported history of sudden decrease in left ear hearing approximately three years earlier. The December 2007 VA examiner noted that the hearing had tested as normal in the separation examination by whispered voice. The examiner further noted that the current left ear loss reflects idiopathic changed that took place in 2005 and is more likely than not unrelated to any events or exposures that may have occurred during military service. The examiner reported that the Veteran may have acquired "some degree" of hearing impairment while on active duty, but how much impairment was simply unknown. Notwithstanding, the 2007 examiner opined that all current hearing loss was simply the accumulation of a lifetime of exposure to noise both during, and subsequent to service which included many decades as a farmer, and recreational noise exposure. The Veteran reported that he had farmed for 30 years after service and also worked in construction for 23 years after service and also being a deer hunter and using a .22 pistol after service. The audiologist noted that the Veteran by history during examination began to notice symptoms of both hearing impairment and tinnitus in the fifth decade of his life in the 1980's, and this history was consistent with a lifelong history of all noise exposure. The audiologist wrote that since the Veteran reported an essential onset of tinnitus in the 1980's, it was likely that tinnitus was unrelated to incidents of service. In a January 2016 consult, the Veteran was re-evaluated due to possible decrease in hearing loss and constant high pitched tinnitus bilaterally. He denied aural fullness, dizziness and ear pain. The Veteran also denied ear trauma, he stated he has difficulty hearing especially in background noise. In a January 2017 opinion, a VA audiologist reviewed the entire record, including private and VA treatment reports, lay statements, as well as the December 2007 VA examination. The Veteran reported military noise exposure to gunfire during basic training, grenade launcher and a month of police training, firing .45 caliber pistol. Following military service, his occupational noise exposure included farming for 30 years, working construction for 23 years after service and being a deer hunter. On examination, the examiner diagnosed bilateral sensorineural hearing loss. The VA examiner stated that he could not determine a medical opinion regarding the etiology of the Veteran's bilateral hearing loss without resorting to speculation. As rationale the examiner indicated that there was only one page of medical record to review, noting that the whispered voice test, completed at the time of separation, suggested normal hearing for both ears. With respect to whether the Veteran's hearing loss was aggravated during his military service, the examiner reported that the Veteran's hearing loss existed prior to service, and opined that it was not aggravated beyond normal progression during his active military service. Similarly, the VA examiner could not provide a medical opinion regarding the etiology of the Veteran's bilateral tinnitus. The VA examiner noted, however, that the Veteran had provided conflicting accounts about the onset of his tinnitus, notably, on the December 2007 VA examination; the Veteran reported that his tinnitus began in the mid 1980's. Accordingly, the 2007 examiner reported that the Veteran reports he has had the symptom for a "long time." He estimates it started approximately 20 years ago (mid 1980s). He did not report recollection of the symptom during service or as associated with acoustic trauma either during service or after. There is no competent, credible, and probative medical evidence placing the onset of hearing loss in service or to a compensable degree within one year of service discharge. As discussed above, the Veteran's audiometric findings in service were within normal limits and not indicative of a hearing loss disability in either ear. The Board does not dispute that the Veteran was exposed to a degree of acoustic trauma from the documented training with multiple small arms during service, however, the Board notes that the service certificate documents only a three-week period of training. Further, the Board notes that while the Veteran reported participating on a pistol shooting team, he specifically reported that his team did not actually compete. While whispered and spoken voice testing is certainly not scientific, the evidence shows that the Veteran's hearing was normal bilaterally at the time of service separation in July 1956, and he did not seek or require any treatment or evaluation for about 50 years for either hearing loss or tinnitus. There is an essential absence of chronicity of symptomatology consistent with 38 C.F.R. § 3.303(b). The Board has considered the Veteran's private physician statement provided in July 2008 which concluded that the Veteran's hearing loss and tinnitus were "at least in part" a result of exposure to loud noise during service. However, the doctor is not shown to have any expertise in audiology evaluation, and he has not shown to have had access to or review the Veteran's claim's file, including the fact that the Veteran was reported to have had normal ears and hearing at the time of discharge in 1956. There has been no audiometric evidence presented to support the statement of the private physician, the doctor seemed to have relied solely on the Veteran's reported history of exposure to weapons fire during service, with no indication of consideration of the Veteran's known post-service exposure to acoustic trauma resulting from farming, construction, and deer hunting. Therefore, the Board affords no probative value to the private physician's medical opinion. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Furthermore, with respect to assertions by the Veteran, his wife and/or his friends that there exists a medical relationship between the Veteran's bilateral hearing loss and tinnitus and service, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matter of the etiology of the disability at issue is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some medical issues (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the specific matter of the etiology of the Veteran's hearing loss and tinnitus are complex medical matters that fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As none of the identified individuals are shown to be other than a layperson without appropriate training and expertise, none are competent to render a probative (i.e., persuasive) opinion about the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, the lay assertions of medical nexus do not constitute competent evidence on this point, and, thus, have no probative value. The Veteran's current bilateral hearing loss and tinnitus did not manifest during active service or to a compensable degree within one year of separation from active service, and the most probative evidence of record shows that the bilateral hearing loss and tinnitus are not etiologically related to active service. Furthermore, the pertinent evidence of record does not demonstrate that the Veteran's hearing loss disability and tinnitus were aggravated beyond normal progression during military service. Therefore, the criteria to establish entitlement to service connection for bilateral hearing loss and tinnitus have not been established, either through medical or probative lay evidence. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss, that doctrine is not applicable. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran Was provided formal VCAA notice in August 2007, prior to the issuance of the rating decision now on appeal from January 2008. This notice informed him of the evidence necessary to substantiate his claims, the evidence he is responsible to submit, the evidence VA would collect on his behalf, and advised he submit any relevant evidence in his possession. The service treatment records, except the separation examination, are unavailable and likely fire related. The RO issued a formal finding on this subject and properly notified the Veteran of service treatment record unavailability. The Veteran was provided with VA examinations in conjunction with the service connection claim on appeal in December 2007 and January 2017 to clarify the nature and etiology of his claimed bilateral hearing loss. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board has found that the January 2017 medical examination and opinion obtained by VA was adequate, as it was based upon a complete review of the evidence of record as well as consideration of the Veteran's lay assertions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. ORDER The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs