Citation Nr: 18146585 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 18-32 186 DATE: October 31, 2018 ORDER The application to reopen the claim for service connection for arthritis is granted. The application to reopen the claim for service connection for a bilateral hearing loss disability is granted. The application to reopen the claim for service connection for sinusitis is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for arthritis is remanded. Entitlement to service connection for sinusitis is remanded. FINDINGS OF FACT 1. A September 2014 rating decision denied service connection for arthritis. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. 2. The evidence associated with the claims file subsequent to the September 2014 rating decision denying service connection for arthritis, is new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. 3. A September 2014 rating decision denied service connection for a bilateral hearing loss disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. 4. The evidence associated with the claims file subsequent to the September 2014 rating decision denying service connection for a bilateral hearing loss disability, is new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. 5. A September 2014 rating decision denied service connection for sinusitis. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. 6. The evidence associated with the claims file subsequent to the September 2014 rating decision denying service connection for sinusitis, is new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. 7. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and his bilateral hearing loss is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The September 2014 rating decision is final. 38 U.S.C. §§ 5108 (2012), 7105; 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. New and material evidence sufficient to reopen the claim of service connection for arthritis has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a), (c). 3. New and material evidence sufficient to reopen the claim of service connection for a bilateral hearing loss disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a), (c). 4. New and material evidence sufficient to reopen the claim of service connection for sinusitis has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a), (c). 5. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1966 to February 1968. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. The Veteran asserts that his arthritis, bilateral hearing loss and sinusitis manifested in-service and are related to service. The Board finds new and material evidence sufficient to reopen the claims of service connection for arthritis, service connection for bilateral hearing loss and service connection for a sinus disability have been received. The regional office (RO) denied service connection for arthritis, noting no event, disease or injury in-service or a relationship to service in a September 2014 rating decision. The RO denied service connection for bilateral hearing loss finding no relationship between the Veteran’s hearing loss and service in a September 2014 rating decision. In addition, the RO denied service connection for sinusitis finding no current disability in a September 2014 rating decision. The Veteran was notified of the decision and his appellate rights in September 2014. The Veteran did not appeal the decision or submit additional evidence within the applicable time period. Therefore, the September 2014 decision became final. 38 U.S.C. §7105; 38 C.F.R. §§ 20.302, 20.1103. In September 2014, the record consisted of service treatment records, VA examinations, VA treatment records, private treatment records and statements from the Veteran. The evidence failed to show evidence of a current sinus disability and that a bilateral hearing loss disability or arthritis was incurred in or attributable to service. Evidence associated since the rating decision includes additional VA and private treatment records, and the Veteran’s lay statements regarding his in-service symptoms and current manifestations. Additional evidence suggests a current sinus disability, and in-service manifestations and ongoing symptomology of the Veteran’s arthritis and bilateral hearing loss. The Veteran’s statements and treatment records are new, not cumulative, indicate a current disability, ongoing symptomology and a potential relationship to service. As such new and material evidence sufficient to reopen the claims of service connection for arthritis, service connection for a bilateral hearing loss disability and service connection for sinusitis have been received. The evidence provided addresses the previous unestablished facts of a current disability, in-service manifestations and a potential relationship to service. It is not redundant. Therefore, reopening of the claims for service connection for arthritis, service connection for a bilateral hearing loss disability and service connection for a sinus disability is warranted. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303 (b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. In addition to the legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. Entitlement to service connection for a bilateral hearing loss disability The Veteran contends that service connection is warranted for his bilateral hearing loss. The Veteran contends that he began experiencing symptoms of hearing loss at separation and these have continued since service. The Veteran is competent to describe his ongoing symptoms in-service and since and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The questions for the Board are whether the Veteran has a current bilateral hearing loss disability that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service or began during service, or if his current bilateral hearing loss is at least as likely as not related to service The Veteran has a diagnosis of bilateral mixed hearing loss. The Veteran contends that in-service he was exposed to hazardous noise and developed hearing loss in-service. The Veteran’s DD 214 notes his military occupational specialty (MOS) was a light vehicle driver. The Veteran’s service treatment records (STRs) have been associated with the claims file. At entrance the clinical evaluation noted that audiometric findings were not completed. At separation in November 1967 on the report of medical examination, audiological testing in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 15 (25) 15 (25) x 15 (20) LEFT 15 (30) 15 (25) 15(25) x 15 (20) The Veteran had an in-service audiological evaluation in November 1967. However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable o the Veteran’s appeal. As it related to VA examinations and VA records audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standards for evaluating hearing loss were not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. 3.385 audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the record data. The Veteran’s November 1967 audiogram has been converted to ISO-ANSI standard above and these values are reflected above in parenthesis. On the report of medical history at separation the Veteran denied ear trouble or hearing loss. Inconsistently, an examiner noted “hist hearing loss left.” In light of the Veteran’s consistent statements and the evidence of record, including in-service duties there is credible evidence indicating an in-service injury or disease is satisfied. As such, the Board concedes in-service noise exposure. See 38 U.S.C. § 1154; 38 C.F.R. § 3.303(a). The issue is whether the Veteran’s current bilateral hearing loss began during service or is related to service. The Veteran was afforded a VA examination in September 2014. On the authorized audiological evaluation in September 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 45 40 LEFT 15 20 20 40 30 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The examiner noted bilateral mixed hearing loss. The examiner noted the Veteran’s current hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran reported occupational noise exposure as a police officer post-service and there were no reports of hearing loss until 1994. The examiner noted that a review of the medical literature notes that exposure to high levels of noise causes either immediate hearing loss or progressive hearing deficits during prolonged periods of exposure, like those of the Veteran’s service. However, medical literature does not support that retroactive effects in hearing are expected so many years after exposure to noise in-service. The examiner considered the Veteran’s reports of hazardous noise exposure in-service and in-service symptoms but found it was less likely than not that is current hearing loss was caused by noise exposure or acoustic trauma during active service. VA and private treatment records note that the Veteran has been seen for reports of bilateral fullness and hearing loss, with intermittent imbalance. Private treatment records in November 1994 noted left ear mild conductive hearing loss and normal hearing in the right ear. In addition, the Veteran was seen for an audiology assessment in January 2014, and pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 45 40 LEFT 20 20 20 50 40 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. Bilateral mild to moderate sensorineural hearing loss was reported and hearing aids were recommended. VA and private treatment records associated with the claims file do not contradict the VA examination and are absent indications of a relationship between the Veteran’s hearing loss and in-service noise exposure. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for bilateral hearing loss is warranted. The Board concludes that service connection is not warranted as the Veteran’s current bilateral hearing loss did not began during service and is not attributable to service. The Veteran’s statements regarding his current symptoms and in-service events are credible. While the Veteran reports his current symptoms of hearing loss are related to service and his duties in-service, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the medical evidence is more probative and credible than the lay opinions of record. The Board gives more probative weight to the competent medical evidence, specifically the September 2014 VA examination, which found the Veteran’s current hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner found a review of the medical literature notes that exposure to high levels of noise causes either immediate hearing loss or progressive hearing deficits during prolonged periods of exposure, like those of the Veteran’s service. However, medical literature does not support that retroactive effects in hearing are expected so many years after exposure to noise in-service. The examiner considered the Veteran’s reports of hazardous noise exposure in-service and in-service symptoms but found it was less likely than not that his current hearing loss was caused by noise exposure or acoustic trauma during active service. Additionally, at separation on the report of medical history the Veteran denied ear trouble or hearing loss. Service records do not support an onset of hearing loss during active service because the Veteran denied any manifestations and a medical examiner noted no ear or neurologic abnormalities and audiological testing did not support such. The Board has considered the Veteran’s audiogram from November 1967, and as it is unclear whether such threshold was recorded using ASA units or ISO-ANSI the Board has considered these results under both standards, relying on the unit most favorable to the Veteran’s appeal. However, relying on the ISO-ANSI standard the Veteran’s November 1967 audiogram does not indicate that a hearing loss disability was present in service, rather such results would indicate that the Veteran’s hearing loss improved from separation to present day in many thresholds. The examiner’s note of a history of hearing loss on the left is not supported by the test results or by the Veteran’s denial of hearing loss. In addition, the Board has considered the Veteran’s lay statements however, the Board gives more probative weight to the competent medical evidence specifically the September 2014 VA examination. In addition, The Board concludes that, while the Veteran has bilateral hearing loss, which is a chronic disease under 38 U.S.C. § 1101(3)/38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. A bilateral hearing loss disability was not “noted” during service or within one year of separation. See Walker, 708 F.3d 1331. The Veteran’s service treatment records at separation as discussed above noted hearing within normal limits and the Veteran denied complaints of hearing loss. The Board has considered the Veteran’s audiogram from November 1967 under both standards, ASA units and ISO-ANSI units relying on the unit most favorable to the Veteran’s appeal. However, relying on the ISO-ANSI standard the Veteran’s November 1967 audiogram does not indicate that a hearing loss disability was present in service, rather such results would indicate that the Veteran’s hearing loss improved from separation to present day in many thresholds. The Veteran indicated in-service he was subjected to hazardous noise working as a vehicle driver, and as noted above hazardous noise exposure has been conceded. See 38 U.S.C. § 1154; 38 C.F.R. § 3.303(a). However, based on the probative evidence of record the Board finds that the Veteran’s bilateral hearing loss did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. Private treatment records show the Veteran was not diagnosed with hearing loss until November 1994 decades after his separation from service and decades outside of the applicable presumptive period. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. As such, the Board finds that service connection for a bilateral hearing loss disability is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for arthritis is remanded. The Veteran contends that service connection is warranted for arthritis which began while in-service. The Board cannot make a fully-informed decision on the issue of service connection for arthritis because no VA examiner has opined as to direct service connection. As such a remand is warranted. 2. Entitlement to service connection for sinusitis is remanded. The Board cannot make a fully-informed decision on the issue of service connection for sinusitis because no VA examiner has fully opined as to direct service connection. The Veteran was afforded a VA examination in September 2014, the examiner noted that the Veteran did not have nor has he been diagnosed with a sinus condition. However, private treatment records note ongoing treatment for and symptoms of sinusitis. As such a remand is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his neck and low back arthritis. The examiner must opine whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s arthritis is caused by service? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to private treatment records noting lumbar spondylosis, degenerative disc disease and thoracic spondylosis. In addition, the Veteran contends that his cervical and thoracic arthritis is due to service. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s sinusitis: (a.) Identify any sinus disorders. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current sinusitis is caused by to service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to private treatment records noting a diagnosis of sinusitis and ongoing treatment. In addition, the Veteran contends his symptoms of sinusitis began in-service. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kardian