Citation Nr: 18149092 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-39 470 DATE: November 8, 2018 ORDER The application to reopen the claim of service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for tonsil cancer is remanded. FINDINGS OF FACT 1. A June 1999 rating decision denied entitlement to service connection for bilateral hearing loss on the grounds of a lack of current disability. The Veteran initiated, but did not perfect, an appeal. 2. Evidence received since June 1999 was not previously considered by agency decision makers, is not cumulative and redundant of evidence already of record, relates to an unestablished claim, and raises the reasonable possibility of substantiating the claim. 3. Bilateral hearing loss was not manifest in service and an organic disease of the nervous system was not manifest within one year of service. Bilateral hearing loss is not attributable to service. 4. The Veteran’s tinnitus was incurred in service. CONCLUSIONS OF LAW 1. The June 1999 decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017) 2. Evidence received since the June 1999 rating decision in relation to the Veteran’s claim for entitlement to service connection for a hearing loss disability is new and material, and, therefore, the claim is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. A bilateral hearing loss disability was not incurred in service or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310, 3.385 (2017). 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1968 to February 1970, including service in the Republic of Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). With regard to the Veteran’s application to reopen his claim for service connection for a bilateral hearing loss disability, regardless of the decision of the RO as to whether to reopen a previously denied claim, a finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. Application to Reopen Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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 C.F.R. § 3.156(a). The Veteran was denied entitlement to service connection for a bilateral hearing loss in a June 1999 rating decision, itself a reconsideration of an October 1998 denial, finding that no current disability was shown. When the Veteran failed to perfect his appeal, the denial of his claim consequently became final. See 38 C.F.R. §§ 20.302, 20.1103 (2017). Audiometric testing added to the file since June 1999 shows worsening of hearing loss, requiring development to determine if hearing loss disability is shown. Reopening of the claim is warranted. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are listed diseases, as organic diseases of the nervous system. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Bilateral Hearing Loss The Veteran contends he is entitled to service connection for a bilateral hearing loss disability. He argues such is due to an ear infection in service, or exposure to noise as an artillery crew member in Vietnam. The alleged noise exposure is established; the Veteran was indeed an artillery crewman. However, with regard to the right ear, current testing still fails to show a hearing loss disability for VA purposes. Regulations require an auditory threshold at 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater; or auditory thresholds for at least three of those frequencies at 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent. 38 C.F.R. § 3.385. At the April 2016 VA examination, only the 4000 Hz frequency on the right exceeds 26, and it is below 40. Speech recognition was 100 percent. In the absence of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Turning to the left ear, a hearing loss disability is established by VA testing in April 2016: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 15 30 LEFT 35 40 60 40 45 Maryland CNC speech audiometry revealed speech recognition ability of 100 percent in the right ear and 92 percent in the left ear. The remaining question is whether there is a nexus between the in-service noise exposure and currently diagnosed left ear hearing loss. The April 2016 VA examiner opined that the Veteran’s hearing loss is less likely as not caused by or a result of an event in military service. The VA examiner referenced the Veteran’s normal hearing upon entry to and separation from service, and that there was no hearing loss while in service. The Veteran worked and retired from jobs in automotive assembly, and also worked as a steelworker and construction laborer. In an addendum opinion dated April 2016, the VA examiner reiterated that the Veteran’s hearing was within normal limits bilaterally prior to, during, and shortly following service without evidence of any significant auditory threshold shift in service or acoustic trauma. The VA examiner referenced the Institute of Medicine (IOM) Report on noise exposure in the military, which concluded that based on current knowledge, there is no scientific support for delayed-onset noise-induced hearing loss. The Veteran’s treating otolaryngologist submitted an opinion in May 2016 opining that the Veteran’s hearing loss is most likely caused by or a result of service. The physician noted that the Veteran had reported that he spent 11 months in artillery service in Vietnam. The physician indicated that it is very likely that his time in artillery contributed significantly to his hearing loss and tinnitus. The Board finds the opinions as to the etiology of the Veteran’s hearing loss expressed in the April 2016 VA examination report of significant probative value. The examination was based on a review of the claims file, interview of the Veteran, and audiological examination. The examiner concluded that it was less likely as not that the Veteran’s hearing loss disability was caused by or a result of an event in service. The rationale included the Veteran’s normal hearing acuity on separation from service, and the absence of any threshold shift during service. Consequently, the Board finds this report to be the most probative evidence of record as to whether the Veteran’s hearing loss disability is related to service. The Board has considered the opinions expressed in the May 2016 treating otolaryngologist’s report. The sole rationale for the opinion, however, appears to have been that the Veteran was exposed to noise in service as an artilleryman. The Board notes that the opinion is of a general nature rather than an analysis specific to the Veteran’s case. The Court has held that evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Unlike the above VA examination report, the otolaryngologist’s opinion failed to consider or discuss the significance of the Veteran’s normal audiometric findings at separation, or the Veteran’s denial of hearing loss at separation. For these reasons, the Board finds the April 2016 VA examination report of significantly greater probative value. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic diseases, such as organic disease of the nervous system. See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). However, neither hearing loss nor an organic disease of the nervous system was “noted” during service. Rather, the audiometric examination was normal at separation and he denied a history of hearing loss at that time. As outlined above, the medical evidence first shows hearing loss until multiple decades after the Veteran’s separation from service. He did not have bilateral hearing loss on separation from service and, indeed, he explicitly denied bilateral hearing loss on separation from service. There is no demonstrable hearing loss disability until decades after separation from service. Furthermore, he did not have characteristic manifestations of the pathology during that time frame. Rather, when tested, the findings were normal and he denied pertinent pathology. Therefore, the evidence is against a finding of continuity of symptomatology for bilateral hearing loss dating back to service. In light of the normal audiogram testing on separation that occurred after the Veteran’s in-service noise exposure and his explicit denial of hearing loss at that time, the Board finds that lay reports of continuity of symptomatology are not credible. As to the Veteran and his representative’s general contentions that his bilateral hearing loss disability was incurred in or was otherwise related to his service, the Board has considered their lay opinions and that of the otolaryngologist. However, the Board finds that the opinion of the April 2016 VA audiologist to be the most probative and credible evidence of record as to the relationship between the Veteran’s bilateral hearing loss disability and his service. Although the Veteran may be competent to report decreased hearing acuity, such lay evidence is far less reliable than the objective testing prepared by skilled professionals during service. As such, the Board is of the opinion that the VA medical opinion ultimately outweighs the positive May 2016 opinion as to etiology. The preponderance of the credible evidence is against the claim; service connection for bilateral hearing loss disability is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Tinnitus The Veteran contends that his current tinnitus disability was incurred during active service. Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an “organic disease of the nervous system” under 38 C.F.R. § 3.309(a) where there is evidence of in-service acoustic trauma and a continuity of symptomatology from service. See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is evidence of in-service acoustic exposure and several reports of a continuity of symptomatology from service. As such, the Board concludes that entitlement to service connection for tinnitus is warranted. In reaching that conclusion, the Board acknowledges that the April 2016 VA examiner did not find a link between the Veteran’s tinnitus and service. That finding, however, failed to address the Veteran’s reports of a continuity of tinnitus from service. The Board notes that the Veteran reported tinnitus at an October 1977 VA audiological examination, and VA outpatient treatment records dated December 2015 further reflect that the Veteran had endorsed intermittent tinnitus bilaterally since service. REASONS FOR REMAND Upon review of the record, the Board finds a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran has not been scheduled for a VA examination for his tonsil cancer claim. The Board finds that the evidence warrants such an examination, as well as additional development. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in-service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA outpatient treatment records reflect that the Veteran was diagnosed with left tonsil squamous cell carcinoma through a biopsy in June 2015. In May 2016, the evidence of record reflects that the Veteran’s oncologist submitted an opinion on the Veteran’s behalf. The physician opined that the Veteran’s tonsil cancer is at least as likely as not caused by or a result of service. The physician noted that while tonsil cancer is not a presumptive diagnosis of Agent Orange, exposure may have been a contributory or exacerbating factor in the Veteran’s cancer. Regarding the letter submitted by the Veteran’s treating physician, the use of the words “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (“may or may not” language by physician is too speculative). The May 2016 opinion is speculative and also conclusory in nature and as such is not probative. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). For the above reasons, the Board concludes that a VA examination for tonsil cancer is necessary. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed tonsil cancer. The claims file must be available to and reviewed by the examiner. The examiner must then opine as to whether it is at least as likely as not currently diagnosed tonsil cancer is related to service, to include exposure to herbicides. Attention is directed to the May 2016 opinion of the Veteran’s treating oncologist that herbicide exposure may have been a contributory or exacerbating factor in the Veteran’s cancer. The availability of presumptive service connection for a disability based on chronic diseases or designated herbicide exposure, to include Agent Orange, does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). A detailed rationale for the opinion must be provided. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by any service-connected disability. 2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel