Citation Nr: 18150909 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-30 905 DATE: November 16, 2018 ORDER The application to reopen the previously denied claim of service connection for hearing loss is granted. The application to reopen the previously denied claim of service connection for tinnitus is granted. Service connection for hearing loss is denied. Service connection for tinnitus is denied. STAYED Service connection for coronary artery disease (CAD) is stayed. Service connection for hypertension is stayed. Service connection for diabetes mellitus is stayed. Service connection for peripheral neuropathy bilateral upper extremities is stayed. Service connection for peripheral neuropathy bilateral lower extremities is stayed. FINDINGS OF FACT 1. In a February 2005 rating decision, the regional office (RO) denied service connection for hearing loss and tinnitus; the Veteran did not initiate an appeal of that decision within one year of notification. 2. Evidence received since the February 2005 denial relates to unestablished facts necessary to substantiate the claims for entitlement to service connection for hearing loss and tinnitus and raises a reasonable possibility of substantiating the claims. 3. The Veteran’s current bilateral hearing loss did not have onset during his active service, was not caused by his active service and did not manifest within one year of separation from active service. 4. The Veteran’s current tinnitus did not have onset during his active service, was not caused by his active service and did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. The February 2005 rating decision that denied entitlement to service connection for hearing loss and tinnitus is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening a claim of entitlement of service connection for hearing loss have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for reopening a claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309(a) (2017). 5. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to June 1966 with additional Reserve service. While the Board acknowledges that the Veteran submitted an October 2018 Rapid Appeals Modernization Program (RAMP) opt-in election form, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. As for service connection for CAD, hypertension, diabetes mellitus, and peripheral neuropathy of bilateral upper and lower extremities claims, the Veteran asserts that these conditions are due to exposure to herbicide agents (Agent Orange) in the offshore waterways of the Republic of Vietnam. During the pendency of the appeal, on August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: ‘Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains multiple issues that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on these matters. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases, including sensorineural hearing loss and tinnitus, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for hearing loss. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for tinnitus. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §20.1100 (2017). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2017). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2017). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and 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) (2017). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156 (b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, the Veteran initially filed a claim for service connection for hearing loss and tinnitus in September 2004. By a February 2005 rating decision, the RO denied entitlement to service connection for hearing loss and tinnitus because there was no evidence of current disabilities. The Veteran was notified of this decision in a letter dated the same month, as well as his procedural and appellate rights, but he did not appeal nor was new and material evidence received during the applicable time period. Thus, the February 2005 rating decision is final. 38 U.S.C. § 7105 (2012)); 38 C.F.R. §§ 3.104, 20.1103 (2017). In June 2010, the Veteran filed a claim to reopen his previously denied claims for service connection for hearing loss and tinnitus. In an October 2014 rating decision, the RO continued to deny the claims. The Veteran submitted a notice of disagreement in November 2014 and a Statement of the Case was issued in June 2016. The Veteran perfected his appeal in a June 2016 VA Form 9. The Board finds that evidence associated with the claims file after the February 2005 denial relates to unestablished facts necessary to substantiate the previously denied claims – a current diagnosis. On June 2014 examination, a diagnosis of sensorineural hearing loss was provided. Audiological tests showed speech discrimination scores of 90 percent in the right ear and 88 percent in the left ear. Thus, the Veteran now has a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385 (2017). As for tinnitus, the Veteran is competent to provide lay evidence of tinnitus as this condition is observable by his own senses. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Given the bases for the prior denials, this is new and material evidence warranting reopening of the claims. 38 U.S.C. §5108; 38 C.F.R. § 3.156, Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Under these circumstances, the Board finds that new and material evidence has been presented and the previously denied claims of service connection for hearing loss and tinnitus are reopened. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Thus, the Board may proceed with a decision on the merits. The Veteran and his representative have not argued otherwise. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for tinnitus. The Veteran claims that his hearing loss and tinnitus disabilities are due to excessive noise exposure during service. A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2017). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Initially, the Board finds that the preponderance of evidence is against a finding that the Veteran’s hearing loss or tinnitus manifested itself to a degree of disability of 10 percent or more within a year of his discharge from service in 1966. The one-year presumption for sensorineural hearing loss under 38 C.F.R. §§ 3.307 and 3.309 is therefore not helpful. The Veteran initially filed a claim for hearing loss and tinnitus in 2004, more than 35 years after service. The first documented treatment for hearing loss symptoms is contained in May 2004 VA treatment records. These facts, together with the long period of time following service prior to any documented statement or medical evidence regarding hearing loss and tinnitus is more probative than the Veteran’s recollections, expressed many years after service. As for direct service connection, as indicated above, the Veteran has current diagnoses of hearing loss and tinnitus. Thus, these diagnoses satisfy the first element of service connection, a current disability. The Veteran’s DD Form 214 states that his military occupational specialty was an able seaman. In an August 2010 statement, he reported excessive noise exposure from his bunkroom being adjacent to an artillery elevator during service. He stated that the elevator had excruciating high noise level, at times, which probably caused his hearing loss. Based on the foregoing, in-service noise exposure is conceded. The Veteran is competent to report his in-service noise exposure and his reports are consistent with the circumstance of his service. 38 U.S.C. § 1154(a) (2012). Therefore, his in-service noise exposure is conceded. The remaining question in this case is whether the Veteran’s hearing loss and tinnitus were incurred during or as a result of his in-service noise exposure. The record contains conflicting medical opinions. Service treatment records do not contain complaints of related symptoms or diagnoses for hearing loss or tinnitus. Clinical evaluation of the ears was normal. On entrance and separation, whisper tests were performed and showed normal hearing. Notably, whisper test results remained the same, showing a whispered voice (wv) of 15 bilaterally. April 1968 Reserve records, in a report of medical history, the Veteran marked “no” to hearing loss and ear, nose, or throat trouble. The first documented treatment for hearing loss symptoms is contained in May 2004 VA treatment records that contain a positive hearing loss test. The Veteran subsequently sought VA audiological treatment in 2008, including receipt of hearing aids. The Veteran was afforded a VA examination in December 2010. He reported constant tinnitus “for a long time.” The examiner report noted that he did not provide an exact date or time of onset. He reported post-service civilian occupational noise exposure as a machine operator. A review of the claims file was noted. The examiner opined that the Veteran’s current hearing loss and tinnitus are not at least as likely as not related to in-service noise exposure. As rationale, the examiner referenced normal whisper tests at separation. The examiner acknowledged that the Veteran’s MOS may have exposed him to some degree of noise but how often and to what degree is speculation, however, hearing loss and tinnitus were not identified as problem areas in the exit medical examination. The examiner concluded that hearing loss and tinnitus were long standing conditions that progressed over time due to the Veteran’s civilian occupational noise exposure as a machine operator. The Veteran was afforded another VA examination in June 2014. The Veteran reported post-service work as a cook, painter, cab driver, city bus driver, and most recently as a machine attendant with hearing protection. He also reported recreational target shooting in the cub scouts. A review of the claims file was noted. The examiner opined that the Veteran’s current bilateral sensorineural hearing loss is not at least as likely as not incurred due to his military service. As rationale, the examiner acknowledged the Veteran’s reports of in-service noise exposure including artillery firing, however, whisper tests during service were normal. The examiner explained that whisper tests are no longer valid, but service treatment records do not contain any complaints of hearing problems. During Reserve service, the Veteran indicated that he was not experiencing any hearing issues. The examiner concluded that the Veteran’s civilian occupations and the natural aging process contributed to his current hearing loss. As for tinnitus, the Veteran reported constant tinnitus since service with a gradual onset. The examiner opined that tinnitus is not related to service. As rationale, the examiner again referenced negative complaints of hearing symptoms in service treatment records. The VA examiners’ opinions are probative, because they are based on an accurate medical history, consider the Veteran’s contentions, and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that “most of the probative value of a medical opinion comes from its reasoning” and that “[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions”). In a November 2014 dated letter, the Veteran reported noise exposure, including being onboard a ship that fired 5-inch guns and performed shore bombing. He reported tinnitus since firing these weapons. The private audiologist noted that service treatment records were unavailable to review. The private audiologist opined that “it is more likely than not that the Veteran’s current hearing loss and tinnitus are related to military noise exposure. This opinion is based on case history of firing 5-inch guns while onboard ship, configuration of hearing loss, and onset of tinnitus.” No further rationale was provided. This private opinion is, however, less probative than the VA examiners’ opinions. Notably, the claims file contains no other treatment records from this provider aside from this sole audiology consultation. The private audiologist’s opinion is largely based on the Veteran’s contentions, not a comprehensive review of the claims file, as the audiologist indicated that he was unable to review service treatment records and did not mention the Veteran’s post-service noise exposure. To this regard, the Veteran has provided inconsistent statements regarding the onset of his hearing loss and tinnitus symptoms. At the December 2010 examination, he was unable to provide an exact date of tinnitus symptoms. Then at the June 2014 examination, he reported continuous hearing loss and tinnitus symptoms since service. These contentions conflict with service treatment records that show normal whisper tests at entrance and separation and the Veteran’s subsequent denial of hearing loss and ear trouble in Reserve records. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). To the extent the Veteran claims that he has had continuous hearing loss and tinnitus symptoms since service, he is competent to do so. However, his statements regarding the onset of hearing loss and tinnitus are not credible due to inconsistency with other evidence of record. As discussed, the Veteran has made inconsistent reports regarding the onset of symptoms. Further, he did not complain of hearing loss until 2004, more than 35 years after service. The first mention of tinnitus symptoms was in his initial 2004 application for benefits. The Board notes that the passage of time between the Veteran’s discharge and complaints of symptoms or an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There are no medical records discussing hearing loss or tinnitus symptoms prior to this date. On the contrary, in 1968 Reserve records the Veteran denied having hearing problems. Therefore, the Board finds that his statements as to the onset and continuity of hearing loss and tinnitus symptoms not credible. The Board must conclude that the weight of the evidence is against the claims of service connection for hearing loss and tinnitus. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt provision does not help the Veteran. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for hearing loss and tinnitus are not warranted. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel