Citation Nr: 1801046 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-27 647 ) 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 a claim of entitlement to service connection for bilateral hearing loss, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus, and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1951 to August 1955 and from February 1958 to May 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran testified at a Decision Review Officer (DRO) hearing. In October 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. 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. In an August 2006 rating decision, the RO denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus; the Veteran did not appeal that decision or submit relevant evidence during the appeal period and that decision is final. 2. Some of the evidence received since the August 2006 final denial is new and relates to an unestablished fact necessary to substantiate the claims for service connection for bilateral hearing loss and tinnitus. 3. Resolving all doubt in the Veteran's favor, the Veteran's bilateral hearing loss disability is as least as likely as not related to service. 4. Resolving all doubt in the Veteran's favor, the Veteran's tinnitus is as least as likely as not related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims for service connection for bilateral hearing loss and tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for establishing service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 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 The Veteran's claims for service connection for bilateral hearing loss and tinnitus were initially denied in an August 2006 rating decision. The Veteran did not appeal the rating decision, nor did he submit new and material evidence within one year of that decision; therefore, that decision is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In April 2010, the Veteran filed a request to reopen his claims for service connection for bilateral hearing loss and tinnitus. In an August 2010 rating decision, the RO declined to reopen the Veteran's claims. In an August 2013 statement of the case, the RO reopened the Veteran's claims but denied them on the merits as there was no evidence that the Veteran's bilateral hearing loss and tinnitus were related to his service. Regardless of the RO's actions, the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened before addressing the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Generally, if a claim for service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). "New and material evidence" can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered at the time of the August 2006 rating decision included service treatment records, service personnel records, lay statements, post-service medical records, and a VA examination report. Service connection was denied because the evidence of record did not show the Veteran's current bilateral hearing loss and tinnitus occurred in or were caused by service, or manifested to a compensable degree within one year following discharge from service. Evidence added to the record since the August 2006 rating decision consists of additional treatment records, additional lay statements, an addendum VA medical opinion, and the Veteran's Travel Board and DRO hearing testimony. This evidence is "new," as it was not previously submitted to agency decision makers. Some of it is also material, as it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disabilities. In this regard, the Veteran's wife testified that she and the Veteran had been married for 38 years and that he has complained about hearing loss and ringing in his ears early on in their relationship. The Veteran also stated that he has experienced ringing in his ears since the 1960s, which has been constant. Furthermore, in March 2010 his private audiologist provided a positive opinion linking both the Veteran's bilateral hearing loss and tinnitus to service. As the threshold to reopen claims is low, the Board finds that new and material evidence has been submitted. Accordingly, the claims for service connection for bilateral hearing loss and tinnitus are reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss and/or tinnitus become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the law 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 (specified frequencies) 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. "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that during his military service he encountered severe noise exposure from diesel and steam turbine engines during his service in the Navy and due to jet engines and working on the flight line during his Air Force service, without ever being issued hearing protection, resulting in his current hearing loss and tinnitus. At the outset, the Board notes the record reflects the Veteran has a current bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385 and tinnitus. Thus, the first criterion for establishing service connection, a current disability, has been met. The Veteran's service treatment records contain an August 1955 Navy separation examination and a February 1958 Air Force enlistment examination where hearing was 15/15 bilaterally upon whispered voice test. Moreover, between March 1960 and December 1960, the Veteran's Air Force service treatment records show complaints of ear pain, blocked ear, popping, and clicking in his ears. In March 1960, the diagnosis was otitis media which was later reported as isolated non-hemolytic staphylococcus. The Board notes that prior to January 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since December 31, 1970, those standards have been set by the International Standards Organization-American National Standards Institute (ISO-ANSI). In order to facilitate data comparison in this decision, for service department audiometric test results through December 31, 1970, the ASA standards have been converted to ISO-ANSI standards. The Veteran's Air Force service treatment records include a May 1959 reference audiogram, a January 1960 ear, nose, and throat consultation audiogram, a February 1961 reference audiogram, and an April 1961 separation audiogram, at which times auditory thresholds were recorded. The May 1959 reference audiogram, when converted to ISO-ANSI standards, showed pure tone thresholds of 20, 25, 15, 15 and 20 decibels in the right ear and 20, 15, 15, 15, and 10 decibels in the left ear at 500, 1000, 2000, 3000 and 4000 Hertz (specified frequencies). Under ASA standards and when converted to ISO-ANSI standards, the January 1960 audiogram, February 1961 audiogram, and April 1961 separation audiogram revealed hearing within normal limits at the specified frequencies. Private treatment records show a hearing loss disability as early as January 1998. In this regard, audiological testing revealed pure tone thresholds of 35, 45, 10, 30 and 70 decibels in the right ear and 50, 45, 20, 35, and 65 decibels in the left ear at the specified frequencies. Speech recognition scores were 92 percent in the right ear and 72 percent in the left, although it is unclear if the Maryland CNC test was used to determine such scores. The Board notes that the Veteran has submitted several private audiograms which continue to show a hearing loss disability. As there is no competent evidence of a hearing loss disability or tinnitus in service or within one year following discharge from service, competent evidence linking the current conditions with service is required to establish service connection. On this question, there is evidence both in favor of and against the claim. An August 2006 VA examiner provided a negative nexus opinion as to the Veteran's hearing loss, reasoning that the configuration of the hearing loss is not typically associated with noise exposure. In this regard, the examiner explained that there appeared to be a significant deterioration in the hearing for speech most noticeably (i.e. speech discrimination in the left ear was 80 percent in May 2005 and that today's best score was only 28 percent) and pure tones when comparing today's testing to results from just a year ago, suggesting that the hearing loss may be of a more recent onset. Regarding tinnitus, the examiner also provided a negative nexus opinion, reasoning that per the Veteran's report, tinnitus had been present only since 1990 and in the left ear. Thus, the examiner stated that tinnitus was not a result of acoustic trauma from military service 30 years prior. The Board notes that regarding tinnitus, the Veteran asserts that there was a miscommunication to the August 2006 VA examiner and that his tinnitus has actually been present since service, but started getting worse in the 1990s, which is what he was trying to convey to the examiner. 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). 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. Id. If it does, such testimony is sufficient to establish service connection. Id. In this case, after resolving doubt in the Veteran's favor, the Board finds the Veteran to be reasonably credible in his lay assertions with regard to tinnitus. In March 2010, a private audiologist examined the Veteran and noted his history of noise exposure in service. The audiologist also noted that testing showed significant moderate to severe sensorineural hearing loss with word recognition of 96 percent on the right and 68 percent on the left. The physician opined that the Veteran's hearing loss, as well as constant tinnitus, were more likely than not caused by the Veteran's history of noise exposure while serving in the military as noise acoustic trauma from Naval boiler rooms, along with noise acoustic trauma from the Air Force while working in close association with turbo jets can cause hearing loss and tinnitus. In August 2010, a VA addendum opinion was obtained. The examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by or a result of his military service, to include noise exposure therein. The examiner reasoned that the Veteran's hearing loss was within normal limits at his 1961 separation examination, including normal hearing at 6000 Hertz bilaterally, and the private audiograms only verify hearing loss at 40 plus years post-service. The examiner cited to a study by the Institute of Medicine (IOM) which concluded that based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss. The examiner also stated that the IOM did not rule out that delayed-onset might exist, but because the requisite longitudinal animal and human studies have not been done and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. Regarding tinnitus, the examiner stated that the Veteran reported to the August 2006 VA examiner that his tinnitus started in 1990 and he was separated from service in 1961. The examiner noted that there were no complaints of tinnitus in the Veteran's service treatment records. Therefore, he concluded it was less likely than not that noise trauma in the military is the etiology of tinnitus. After review of the record, the Board notes that there are competent and probative medical opinions both in favor of and against the claims for service connection for bilateral hearing loss and tinnitus. The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of balance. In this matter, the Board finds that the evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss and tinnitus are related to his military service. Accordingly, affording the Veteran the benefit of the doubt, service connection for bilateral hearing loss and tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs