Citation Nr: 1805485 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-24 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas 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. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from April 1977 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a videoconference hearing before the Board in September 2017. FINDINGS OF FACT 1. A June 1991 rating decision denied the Veteran's claim of entitlement to service connection for bilateral hearing loss; evidence obtained since that time raises a reasonable possibility of substantiating the claim. 2. Symptoms of hearing loss were not chronic in service or continuous since service; hearing loss did not manifest to a compensable degree within one year of service separation; and the Veteran's currently diagnosed bilateral hearing loss is not causally or etiologically related to his active service, to include any noise exposure therein. CONCLUSIONS OF LAW 1. New and material evidence has been received since the June 1991 denial of service connection for bilateral hearing loss, and that claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. Criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1133, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided. Additionally, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been associated with the claims file. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disability and contentions, and grounded the opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Veteran has not objected to the adequacy of the examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for certain chronic diseases, including hearing loss, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. § 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309; see Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that tinnitus is chronic disease under 38 U.S.C. § 1101 (2012); 38 C.F.R. § 3.309(a) (2017). When chronic diseases are at issue, the second and third elements for service connection may alternatively be established New and Material In a September 2008 rating decision, the Veteran's applications to reopen claims of entitlement to service connection for hearing loss and residuals of a head injury were denied. The Veteran thereafter perfected an appeal of these issues. A June 1991 rating decision originally denied the Veteran's claim for service connection for bilateral hearing loss. That decision is final. 38 C.F.R. § 20.1103. However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As noted, in a June 1991 rating decision, the Veteran's claim for service connection for hearing loss was denied. The RO concluded that the evidence did not show that the Veteran's hearing loss disability was related to military service. Since the claim was denied, evidence in the form of private treatment reports, hearing testimony, VA examinations reports, and lay statements has been submitted. The Veteran testified that he was granted service connection for tinnitus and combat noise exposure was conceded. He also indicated that he had hearing loss since his discharge from service. The Board concludes that the newly submitted evidence is material. As such, the claim is reopened. The Board will next address the underlying claim of service connection. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Sensorineural hearing loss and arthritis are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38U.S.C. §§ 1101, 1133; 38 C.F.R. §§ 3.30, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The law allows combat veterans, in certain circumstances, to use lay evidence to establish the incurrence of a disease or injury in service. 38 U.S.C. § 1154(b) (2012). However, the provisions of 38 U.S.C. § 1154(b) do not provide a substitute for nexus evidence. They only serve to relax the evidentiary burden to establish incurrence of a disease or injury in service. Clyburn v. West, 12 Vet. App. 296 (1999). A review of the Veteran's service treatment reports reflects that the entrance examination dated March 1977 included audiological testing which revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 10 35 LEFT 20 20 20 25 25 The Veteran denied hearing loss on a report of medical history form prepared in conjunction with the entrance examination. The January 1980 separation examination included audiological testing which revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 35 LEFT 10 10 10 15 35 The Veteran denied hearing loss on a report of medical history form prepared in conjunction with the separation examination. VA treatment reports reflect that the Veteran was diagnosed with a high frequency hearing loss bilaterally in January 1991. He was noted to have applied for a position at Fort Sam Houston as a Laundry Worker and his duties were noted to involve intermittent noise exposure. The Veteran was afforded a VA audiological examination in April 2016 which revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 50 65 75 LEFT 10 20 75 75 90 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 68 percent in the left ear. The Veteran was diagnosed with high frequency sensorineural hearing loss. The examiner reviewed the Veteran's claims file and relevant medical history and conducted a clinical evaluation and concluded that the Veteran's bilateral hearing loss was less likely than not caused by or as a result of an event in service. The examiner's rationale is that there was no significant shift in hearing thresholds from entrance to separation. The examiner concluded that there is no evidence that the Veteran's hearing loss was due to military noise exposure. The examiner indicated that any worsening of hearing loss from the Veteran's time of discharge to the time of the examination was due to noise exposure, aging, or other factors between the time of discharge until the present. This examiner's rationale regarding timing of onset of noise-induced hearing loss is supported by current literature which states that "The evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on puretone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration, and type of noise exposure. Most recovery to stable hearing thresholds occurs within 30 days" (Institute of Medicine). Further, current science indicates that the "understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." (Institute of Medicine). In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. At separation, the Veteran did not have a hearing loss disability in either ear, even under Hensley. Following service, the first medical evidence of a diagnosed hearing loss disability was in January 1991 at VA. As such, there is no medical evidence showing that hearing loss was diagnosed for VA purposes either during service or within a year of service. Likewise, bilateral hearing loss has not been continuous since service, as it was not shown by audiometric testing at separation physical. To the extent the Veteran would be competent to report diminished hearing acuity at separation, he would not be competent to diagnose hearing loss for VA purposes as such a determination would require both objective audiometric and speech recognition testing, which the Veteran could not perform on himself. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the 38 C.F.R. § 3.303(b) presumptions have not been met. Nevertheless, service connection may be granted if the evidence establishes a nexus between the bilateral hearing loss and the Veteran's military noise exposure. The April 2016 VA examiner concluded that the Veteran's bilateral hearing loss was less likely than not due to military noise exposure. The examiner provided a thorough rationale for this conclusion. There is no objective evidence to contradict this opinion. Furthermore, there is no evidence of the Veteran having met the criteria for a compensable rating for hearing loss within one year after service. 38 C.F.R. §§ 3.307, 3.309. The Board acknowledges that the Veteran is competent to report that he experienced decreased hearing since service. Lay evidence in the form of statements or testimony of the Veteran is competent to establish evidence of symptomatology where symptoms are capable of lay observation, such as reporting diminished hearing acuity. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran's opinion that his claimed hearing loss disability is related to active duty service is insufficient to provide the requisite etiology of the claimed disability because that matter requires medical expertise. A lay person is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms. 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board ultimately places more probative weight on the opinion of the competent health care specialist who reviewed the record, and found that a relationship between the Veteran's current bilateral hearing loss and service was less likely. Therefore, the statements regarding his claimed hearing loss being related to active duty service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. ORDER The claim for service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs