Citation Nr: 1801053 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-11 247A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right ear hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right ear tinnitus. 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to service connection for right ear tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to October 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for hearing loss and tinnitus of the right ear. FINDINGS OF FACT 1. The Veteran did not appeal an October 2005 RO decision that denied service connection for Meniere's disease with hearing loss and tinnitus. 2. Evidence received since the October 2005 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claims, now captioned as separate claims, for service connection for right ear hearing loss and right ear tinnitus. 3. The Veteran has experienced recurrent symptoms of right ear hearing loss since his separation from service to the present. 4. The Veteran has experienced recurrent symptoms of right ear tinnitus since his separation from service to the present. CONCLUSIONS OF LAW 1. The October 2005 RO decision that that denied service connection for Meniere's disease with hearing loss and tinnitus is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.201, 20.302 (2017). 2. The evidence received subsequent to the October 2005 RO decision is new and material; the separate claims for service connection for right ear hearing loss and right ear tinnitus are reopened. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Right ear hearing loss was incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 4. Right ear tinnitus was incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing 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 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. See 38 C.F.R. § 3.156 (a). The Veteran's claim for service connection for Meniere's disease with hearing loss and tinnitus was denied by the RO in October 2005. While the Veteran's attorney, his representative at the time, issued an October 2005 statement noting that the examiner did not properly consider the Veteran's hearing loss and tinnitus, no party filed a Notice of Disagreement to the October 2005 rating decision. Nor was there any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.201. As such, the October 2005 RO rating decision became final. Relevant evidence added to the record since the prior RO rating decision includes statements as to the onset of auditory symptoms, specifically, the Veteran's statement made during the March 2016 VA examination placing the onset of his tinnitus in the late 1980s or early 1990s, and his representative's December 2017 statements that the Veteran had symptoms of hearing loss prior to his Meniere's disease diagnosis. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (in determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim with VA's assistance). Accordingly, as the statements could serve as bases to substantiate the claims, and the claims for service connection for right ear hearing loss and right ear tinnitus are reopened on the basis that new and material evidence has been received. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection, the evidence must generally 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); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). For purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Organic neurological disorders, including sensorineural hearing loss and tinnitus, are listed as such chronic conditions under 38 C.F.R. § 3.309 (a). Such may also be presumed to have been incurred in or aggravated by service if it becomes manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends, in a number of statements, that he has right ear hearing loss and tinnitus that are related to noise exposure during his active duty service, and also that such disabilities began during service when he was exposed to noise from engines, the flight line, and artillery, and was treated for otitis media and a perforated right ear drum. A layperson is competent to report on the onset and continuity of his current symptomatology. See 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). In a January 2010 statement, he described such in-service noise exposure in detail. In a May 2005 statement, the Veteran reported that his symptoms started in 1986, with piercing earaches with days and weeks of subsequent right hearing loss, with worsening in 2003. During his March 2016 VA examination, he placed the onset of his tinnitus in the late 1980s or early 1990s. On VA examination in January 2010, the Veteran reported tinnitus and his puretone thresholds, in decibels, for the right ear were 30, 45, 45, 40, 50, measured at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Impaired hearing will be considered a disability when, in pertinent part, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater. 38 C.F.R. § 3.385. There is evidence of an auditory threshold of 40 decibels or greater at least one of the specified frequencies; and the Veteran's right ear hearing loss thus meets the VA requirements for consideration as a disability. 38 C.F.R. § 3.385. The Veteran's service treatment records are silent for any complaint, treatment, or diagnosis of right ear hearing loss or tinnitus. However, pertinent regulations does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In April 1986, he presented with a clogged right ear and was considered for otitis media. In September 1986, he presented with a perforated tympanic membrane on the right, and was treated for otitis media. In April 1988, he complained of ear pain. It does not appear that the Veteran's results of audiometric testing at the time of his separation examination in August 1991 were included in his service treatment records, however, results from such testing show a decrease in right ear hearing acuity at the time of his February 1986 examination, when compared with his October 1979 entrance examination. The Veteran's Form DD-214, his service separation form, shows that his military occupational specialty (MOS) was armor crewman for six years and equipment parts for nine years. He has described being exposed to noise during service from engines, the flight line, and artillery. However, as there is already of record evidence of an in-service event as the Veteran's right ear, as discussed above, the Board need not further consider whether there is sufficient evidence to warrant a finding of in-service acoustic trauma. VA examiners rendered negative etiological opinions as to the Veteran's right ear hearing loss and tinnitus. In January 2010, a VA examiner reasoned that there was documentation of normal hearing acuity at separation from service, his mild low-frequency hearing loss shown in the right ear in 2002 is not associated with noise-induced hearing loss, and his hearing loss in the right ear shown from 2003 through 2005 is related to his Meniere's disease. In March 2016, a VA examiner reasoned that the Veteran's right ear hearing loss is related to his Meniere's disease and the loss has progressed over time, with the treatment for the disease, and reasoned that the Veteran's tinnitus is an extremely common symptom of Meniere's disease. Neither VA opinion, however, was rendered taking into account the Veteran's competent and credible, and thus probative, lay statements as to experiencing the sensation of right ear hearing loss and tinnitus in the years preceding his diagnosis of Meniere's disease. The Veteran is competent to report experiencing the sensation of right ear hearing loss and tinnitus at that time, continuing to the present, and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. The negative VA etiological opinions are thus of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In sum, of record is evidence of in-service events wherein the Veteran was treated for conditions related to the right ear. Also of record is the diagnosis of tinnitus and right ear hearing loss that meets the VA requirements for consideration as a disability, as well as the Veteran's probative lay statements that he experienced right ear hearing loss and tinnitus since separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for right ear hearing loss and right ear tinnitus is warranted. ORDER New and material evidence having been received, the claim for service connection for Meniere's disease with hearing loss and tinnitus, now captioned as a claim for service connection right ear hearing loss is reopened. New and material evidence having been received, the claim for service connection for Meniere's disease with hearing loss and tinnitus, now captioned as a claim for service connection right ear tinnitus is reopened. Service connection for right ear hearing loss is granted. Service connection for right ear tinnitus is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs