Citation Nr: 1804482 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-23 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Fleet Reserve Association WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel INTRODUCTION The Veteran had active service in the United States Coast Guard from November 1968 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2016, the Veteran presented sworn testimony during a Travel Board hearing at the RO, chaired by the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. As a preliminary matter, the Board notes that the June 2010 rating decision included denied service connection for temporomandibular joint disorder (TMJD) in addition to hearing loss and tinnitus and other issues not on appeal. The Veteran submitted his Notice of Disagreement (NOD) in June 2010. No reference was made to TMJD. In May 2013, the RO issued its Statement of the Case that, in pertinent part, addressed the appealed issues of hearing loss and tinnitus. The Veteran filed a statement that was accepted in lieu of a VA Form 9 in July 2013. In that statement, reference was made to the TMJD claim. The issue of TMJD, and whether the Veteran submitted new and material evidence sufficient to reopen that claim is referred back to the AOJ. The Board has determined that new and material evidence of the claims for hearing loss and tinnitus and service connection of hearing loss and tinnitus are the only issues before the Board at this time. FINDINGS OF FACT 1. An unappealed October 2004 rating decision denied service connection for bilateral hearing loss and tinnitus based on the finding that neither condition was shown to be related to the Veteran's active service. 2. Evidence submitted subsequent to the October 2004 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss and tinnitus. 3. The evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is related to his service. 4. The evidence is at least in equipoise as to whether the Veteran's tinnitus is related to his service. CONCLUSIONS OF LAW 1. The October 2004 RO decision denying entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017). 2. 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; 38 C.F.R. § 3.156, 4.85 (2017). 3. The criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C.§1110; 38 C.F.R. 3.303 , 3.307, 3.309, 3.385 (2017). 4. The criteria for an award of service connection tinnitus have been met. 38 U.S.C.§1110; 38 C.F.R. 3.303 , 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The Court has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The United States Court of Appeals for the Federal Circuit (Court) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran's claims for service connection for hearing loss and tinnitus were originally denied in an October 2004 rating decision. The RO determined that there a lack of evidence to show that the conditions were incurred in or were caused by military service. After being given notice of the decision, the Veteran did not appeal and there is no indication that new and material evidence was received within a year of this decision. The decision, therefore, became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017). The evidence received since the October 2004 rating decision includes lay statements and testimony from the Veteran. In pertinent part, the Veteran states that he experiences noise exposure in service that resulted in hearing and tinnitus problems in service, and he has continued to experience those problems since service. The credibility of this evidence is presumed for purposes of determining its sufficiency to reopen the claims. The Board finds that this evidence was not of record at the time of prior decision, and relates to an unestablished fact necessary to substantiate the claim. Therefore, the new evidence submitted subsequent to the October 2004 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss and tinnitus. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. § 1112, 1113; 38 C.F.R. § 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are qualifying chronic diseases as they are organic diseases of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). As a result, service connection via the demonstration of continuity of symptomatology is applicable. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Additionally, it is well established that normal hearing at separation does not necessarily indicate that the Veteran did not experience in-service loss of hearing acuity. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In other words, service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Id. Thus, the fact there was no disability in service does not generally serve as a sufficient basis to determine no nexus exists. A review of the medical evidence reflects that the Veteran has been diagnosed with bilateral sensorineural hearing loss, as defined by VA regulations, and tinnitus. 38 C.F.R. § 3.385; see May 2010 VA examination report. The first element of Shedden is met for both claims For Shedden element (2), in service incurrence or aggravation of a disease or injury, service treatment records are negative for any complaints, treatment, or diagnosis of hearing loss or tinnitus. The Veteran's hearing was found to be within normal limits per VA definition at service discharge. It is important to note that audioemetric testing was not performed at service entrance. The Veteran was administered the whispered and spoken voice testing, which the Board acknowledges to be unreliable. The Board also acknowledges that some shift in hearing acuity is observed when comparing audiometric testing conducted in October 1971 and August 1972. Notwithstanding the foregoing, the Veteran asserts that he was exposed to loud noise from his in-service work as a boatswain's mate working with power tools refurbishing ships and exposure to gunfire, specifically from cannon fire during an incident where he was not prepared with hearing protection. Based on the Veteran's work assignment and his credible and consistent statements, the Board concedes that he had noise exposure in service. The second element of Shedden is also met for both claims. Turning to the question of a medical nexus, Shedden element (3), a VA examiner opined that the Veteran's hearing loss and tinnitus were less likely than not related to his active service. See May 2010 Report. The examiner noted a lack of in-service medical records of noise exposure, and stated that both hearing loss and tinnitus were more likely caused by noise exposure in the intervening years since service, without explaining to what intervening noise the Veteran was exposed. The examiner did not provide any further rationale or explanation of the opinion. The examiner also failed to adequately discuss or address the Veteran's lay assertions of both hearing loss and tinnitus in and since service. As such, the opinion carries reduced probative value. The Veteran relates his current hearing loss and tinnitus to his military service in his lay statements and hearing testimony. He described exposure to noise from large caliber weaponry aboard his assigned ship. The Veteran specifically referenced an instance when he was not prepared with ear protection before a large weapon was discharged in his presence. He stated he had an immediate sharp pain, loss of hearing, and tinnitus, described as ringing, crackling, or bird chirping in his ears that has continued throughout his adult life, progressively worsening. The Veteran is wholly competent to self-diagnose and report the onset and course of simple, lay-observable conditions such as tinnitus (which is diagnosed primarily based on subjective reports). Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). He is competent to testify as to the onset and frequency of tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). Thus, his own account of experiencing the initial onset of tinnitus in 1968 with progressive worsening in severity is competent evidence of the history and course of his tinnitus. The Board finds no reason to doubt the veracity of those statements, and finds them credible. Thus, those statements, alone, are sufficient to establish entitlement to service connection on the basis that tinnitus began in service and has persisted since. The Veteran is likewise competent to testify as to his symptoms of hearing loss and when they began. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The Veteran has maintained his assertions that his hearing loss began in service and has given very detailed, competent testimony as to the specific events that he claims were the origins of his hearing loss symptoms. Again, the Board finds no reason to doubt the veracity of those statements, and finds them credible. Despite the negative nexus opinion from the VA examination, the Board finds the competent and credible statements of the Veteran as to ongoing hearing loss and tinnitus since service to be of equal weight as the medical opinion. In view of the totality of the evidence, including the recognition of in-service noise exposure, current finding of sensorineural hearing loss and tinnitus, and the credible lay assertions of record, the Board finds the evidence is at least in relative equipoise regarding these issues. When the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for bilateral hearing loss and tinnitus is warranted. ORDER As new and material evidence sufficient to reopen the previously denied claims for service connection for hearing loss and tinnitus has been received, the application to reopen is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs