Citation Nr: 1801236	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  16-22 170	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim for service connection for right ear hearing loss and, if so, whether service connection is warranted.

2.  Entitlement to service connection for left ear hearing loss.

3.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1959 to May 1963.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

With regard to the claim to reopen, regardless of any RO determination, the Board must address the question of whether new and material evidence to reopen the claim has been received because the matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).

In his May 2016 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge.  Although he has not been afforded a hearing, because the Board is granting the full benefit sought on appeal, there is no prejudice to the Veteran in proceeding to the merits of his claims.

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) (2014).


FINDINGS OF FACT

1.  In a rating decision issued in June 1999, the RO denied the Veteran's claim of entitlement to service connection for right ear hearing loss; he did not initiate an appeal of that decision.

2.  Additional evidence associated with the claims file since the June 1999 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial, it relates to unestablished facts necessary to substantiate his claim for service connection for right ear hearing loss, and it raises a reasonable possibility of substantiating the claim.

3.  The Veteran's reports of in-service noise exposure are credible and consistent with the circumstances of his service, and the competent and credible evidence of record relates his bilateral hearing loss and tinnitus to his in-service noise exposure.


CONCLUSIONS OF LAW

1.  The June 1999 rating decision in which the RO denied the Veteran's claim for service connection for right ear hearing loss is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.104, 20.302, 20.1103 (2017).

2.  As evidence received since the June 1999 rating decision is new and material, the claim for service connection for right ear hearing loss is reopened.  38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.156 (2017).

3. The criteria for service connection for bilateral hearing loss are met.  38 U.S.C. §§ 1110, 1154, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).

4.  The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence

Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 U.S.C. § 5108; 38 C.F.R. § 3.104(a).  The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C. § 7105(b), (c); 38 C.F.R. § 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2017).

However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim.  38 U.S.C. § 5108 (2014).  "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to provide a medical opinion.  Id.

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Service connection for right ear hearing loss was denied in a June 1999 rating decision.  The RO determined that the Veteran's service treatment records were silent for any complaints of or treatment for hearing loss in service, and that his current treatment records failed to reveal any complaints related to right ear hearing loss.  

Although notified of the decision and his appellate rights in June 1999, he did not enter a notice of disagreement with that decision.  No further communication regarding his claim for right ear hearing loss was received until July 2013, when VA received his petition to reopen such claim.  

The provisions of 38 C.F.R. § 3.156(b) provide that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the period.  However, no evidence was received prior to the expiration of the appeal period after the June 1999 decision and the regulation is inapplicable.  See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011).  Furthermore, 38 C.F.R. § 3.156(c) is also inapplicable, as the Veteran's service treatment records were of record at the time of the June 1999 rating decision. Therefore, the June 1999 rating decision is final.  38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103.

Evidence added to the record since the June 1999 rating decision includes VA treatment records, including an August 2010 VA audiogram, a June 2014 VA examination, and a November 2014 opinion from the Veteran's VA treatment provider that related the Veteran's hearing loss to his military service.

This evidence is new because it was not before the RO at the time of the June 1999  rating decision.  Furthermore, this evidence is material because, when considered with the previous evidence of record, this evidence relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for right ear hearing loss, namely a right ear loss disability and a relationship to his military service.  Thus, the Board finds that the evidence submitted is both new and material, and the claim is reopened.

II.  Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts demonstrate that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if pre-existing service, was aggravated therein.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).

"To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury; (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting 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 a listed chronic disease, including organic diseases of the nervous system such as sensorineural hearing loss or tinnitus manifests 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. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

Alternatively, service connection may be established for a listed chronic disease under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.  The provisions of 38 C.F.R. § 3.303(b) can be applied only in cases involving those conditions explicitly recognized as chronic under 38 U.S.C. § 1101; 38 C.F.R. § 3.309(a); cf. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Lay evidence can be competent and credible on the issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Id. at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Additionally, where symptoms are capable of observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Charles v. Principi, 16 Vet. App 370, 374 (2002).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

The Veteran contends that he has bilateral hearing loss and tinnitus as a result of in-service noise exposure.  For example, during a November 2014, he reported noise exposure as an aircraft mechanic from propellers and eighteen cylinder engines.  The Veteran's DD-214 confirms that his military occupational specialty was aircraft engine mechanic. 

With regard to the first element of service connection, the presence of a current disability, the Board notes that, 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, 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.

Here, the Board finds that the Veteran's bilateral hearing loss meets VA's definition of a hearing loss disability under 38 C.F.R. § 3.385.  In this regard, the June 2014 VA examination revealed pure tone thresholds as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
40
35
50
55
75
LEFT
40
35
35
55
65

Speech recognition testing utilizing the Maryland CNC word list revealed a score of 92 percent in the right ear, and 96 percent in the left ear.

In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition that is capable of lay observation.  See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has consistently reported having bilateral tinnitus throughout the appeal period.  See November 2014 Medical Opinion.  Thus, the evidence sufficiently establishes a current disability of tinnitus.  

Accordingly, the first element of service connection is established for both bilateral hearing loss and tinnitus.

With regard to the second element of service connection, the Veteran is competent to report in-service noise exposure; that he experienced hearing problems during and following service; and that it has continued since then.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159(a)(2).  His reports of in-service noise exposure are credible and consistent with the type and circumstances of his military service, to include his duties as an aircraft engine mechanic.  38 U.S.C. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran's service).  Accordingly, the Board finds that his assertions concerning his in-service noise exposure are competent and credible lay evidence of such.  Therefore, the remaining inquiry is whether there is nexus, or link, between bilateral hearing loss and tinnitus and the Veteran's military service noise exposure.  

The Board finds that there is sufficient competent and credible evidence to establish a relationship between the Veteran's in-service noise exposure and his current bilateral hearing loss disability and tinnitus.

With regard to the Veteran's service treatment records, his May 1959 entrance examination and his May 1963 discharge examination note that testing revealed fifteen out of fifteen in both spoken voice and whispered voice.  A March 1960 audiogram revealed puretone thresholds as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
10
-
0
LEFT
0
0
5
-
5

However, service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units.  As such, the March 1960 audiogram revealed the following results in ISO units:

HERTZ
500
1000
2000
3000
4000
RIGHT
20
10
20
-
5
LEFT
15
10
15
-
10

As noted above, the Veteran underwent a VA examination in June 2014.  The examiner ultimately concluded that she could not provide opinion as to whether the Veteran's bilateral hearing loss was related to his military service without resorting to speculation.  The examiner noted the Veteran's normal whisper tests at enlistment and discharge, and the March 1960 audiogram, which demonstrated normal hearing.  The examiner stated that whisper testing was not ear or frequency specific, and not sensitive to high frequency hearing loss.  Thus, without knowing the Veteran's puretone thresholds at entrance and discharge, she could not provide an opinion without resort to speculation.

In November 2014, the Veteran submitted an opinion from his VA treatment provider.  The treatment provider noted the Veteran's reported problems with tinnitus for the last fifty years, and his belief that his hearing loss was the result of acoustic trauma he sustained during service.  The treatment provider noted that the Veteran's in-service noise exposure included servicing, repairing, and testing propeller aircraft, and working around extremely noisy radial eighteen-cylinder engines for nearly four years.  The Veteran reported that he was not afforded hearing protection at the time.  With regard to post-service noise exposure, the treatment provider noted no significant occupational or recreational noise exposure.  Ultimately, based on these facts, the treatment provider concluded that it was as likely as not that the Veteran's in-service acoustic trauma contributed to his current bilateral hearing loss and tinnitus.

Regarding the Veteran's assertions of continuous hearing problems and tinnitus since service, the Board notes again that, as a lay person, he is competent to report on matters observed or within his personal knowledge.  See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 vet. App. 303 (2007).  See also Layno, supra; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  The Veteran is also competent to testify as to observable symptoms or injury residuals.  Moreover, tinnitus is a rare type of disability that may be established on the basis of lay evidence.  Charles, supra.  Thus, the Veteran is competent to state that his hearing problemsand tinnitus began in service, and that he has continued to experience these problems since service.

However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determined whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).  Here, the Veteran's lay statements concerning the onset of his hearing problems and tinnitus and continuity of symptoms following since service are credible, and there is no evidence in the record indicating that the Veteran's statements are not credible.

Moreover, his statements are supported by the probative November 2014 opinion that related the Veteran's bilateral hearing loss and tinnitus to his in-service noise exposure.  The opinion clearly reflects consideration of the Veteran's medical history, including his competent and credible lay statements concerning his in-service and post-service noise, and the examiner offered a clear conclusion with a reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinion.").

Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for bilateral hearing loss and tinnitus are met.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

New and material evidence having been received; the claim of entitlement to service connection for right ear hearing loss is reopened.

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs