Citation Nr: 18151371 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 17-52 037 DATE: November 20, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a stroke is remanded. FINDINGS OF FACT 1. An October 2010 rating decision denied the claim of entitlement to service connection for tinnitus; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. Therefore, the decision is final. 2. Evidence received subsequent to the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus. 3. The Veteran’s bilateral hearing loss did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. 4. The Veteran’s tinnitus did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. 5. The Veteran’s sleep apnea did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for establishing entitlement to service connection bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 3. The criteria for establishing entitlement to service connection tinnitus loss have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 4. The criteria for establishing entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to February 1987. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. The Board otherwise finds no deficiencies with respect to either duty. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 ; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012). “New” evidence is defined as existing evidence not previously submitted to agency decision-makers. “Material” evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied service connection for tinnitus in October 2015. The RO determined that the disability was not related to service. He did not appeal the denial or submit any pertinent evidence within the appeal period. Therefore, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. In September 2016, the Veteran filed a claim to reopen the claim of entitlement to service connection for tinnitus. Evidence received since the October 2015 rating decision includes a statement from the Veteran regarding his in-service noise exposure. The medical evidence constitutes new and material evidence. This follows because the evidence relates to a previously unestablished element that is necessary to grant entitlement to service connection for tinnitus. Accordingly, reopening of the claim for service connection for tinnitus is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay 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, injury, or event and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the 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). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. The Veteran seeks service connection for bilateral hearing loss and tinnitus. He contends that his disabilities are related to in-service acoustic trauma. Specially, he states that he worked around aircraft during service and that use of hearing protection was not enforced. The evidence of record includes a diagnosis of hearing loss for VA purposes and a diagnosis of tinnitus. The Veteran described acoustic trauma from his military duties around aircraft. Additionally, his military occupational specialty was a munitions systems specialist, which has a high probability of noise exposure. Therefore, the evidence satisfies two of the three elements needed for service connection for each disability. Thus, the remaining question is whether the Veteran’s currently diagnosed bilateral hearing loss and tinnitus are related to his military service. In this regard, the Board notes that the bilateral hearing loss and tinnitus are not shown in the service treatment records. The Veteran was a part of a hearing conservation program, however, his hearing was essentially normal and the Veteran denied having ear problems at the time of his separation from service. The Veteran underwent a VA audiological examination in October 2015. He reported that his military duties involved firing weapons, but that he used hearing protection. The examiner opined that it was less likely as not that the Veteran’s bilateral hearing loss and tinnitus were related to service. The rationale was that service treatment records showed hearing within normal limits at enlistment and separation with minimal significant adverse permanent changes in hearing during service. The examiner acknowledged the Veteran’s noise exposure during service and explained that there was no evidence that his hearing was adversely affected by his military service. Additionally, the degree and configuration of the Veteran’s currently diagnosed hearing loss is inconsistent with a noise-induced hearing loss that started over 30 years ago. With regard to tinnitus, the Veteran reported that the disability started in 2006. The examiner also opined that it was at least as likely as not that his tinnitus is a symptom associated with hearing loss. The examiner stated that the opinion was based on the known correlation between progressively worsening hearing acuity and the onset of tinnitus, so as his hearing loss progressed his tinnitus also worsened. Moreover, as the Veteran reported tinnitus onset almost 30 years after separation from service, that length of time would negate any realistic correlation between his military service and his current tinnitus. The Board affords significant probative value to the VA examiner’s opinion as it takes into consideration the Veteran’s clinical history and the current examination findings, as well as included adequate rationale in support of the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Additionally, there is no contrary medical opinion of record. The Board has considered the probative value of his own lay statements. Under the facts of this case, the Board finds that the question of etiology is not within the realm of lay expertise. In particular, as the STRs are silent for any reference to hearing loss or tinnitus, and as there is no reference by the Veteran to hearing loss or tinnitus until many years after service, the Veteran in essence is offering an opinion that the dispositive factors influencing the onset of hearing loss and tinnitus are from service, as opposed to post-service noise exposure. The Board finds that the determination of what factors were the most influential in the development of the hearing loss and tinnitus many years after service is clearly within the realm of medical, and not lay expertise. Accordingly, the Board finds that his lay statements are not probative in this matter. Accordingly, the Board finds that service connection is not warranted for bilateral hearing loss and tinnitus. Since the preponderance of the evidence is against the claims, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. Therefore, service connection for bilateral hearing loss and tinnitus is denied. 4. Entitlement to service connection for sleep apnea. The Veteran seeks service connection for sleep apnea. He has provided very few details regarding a theory of entitlement for this disability. The Veteran’s service treatment records do not document any complaints or treatment for a sleep disorder. At the time of his separation of service, he denied frequent trouble sleeping. An August 2016 VA polysomnography report included a diagnosis of severe obstructive sleep apnea, which is almost 30 years after his separation from service. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). As noted above, the Veteran has not provided information regarding his claim and the evidence of record does not otherwise suggest that his sleep apnea may be attributable to service. Specifically, he has not identified any in-service incidents to which he attributes his sleep apnea. Accordingly, the Board finds that service connection is not warranted for sleep apnea. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. Therefore, service connection for sleep apnea is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for hypertension. He asserts that he was placed on a restricted diet during service due to hypertension. He also states that his hypertension is related to the heart murmur, which was diagnosed during service. He contends that he has been on blood pressure medication most of his life. August 1983 service treatment records indicated that the Veteran was referred for further evaluation due to a heart murmur. The assessment was a physiologic murmur and his blood pressure reading 148/84 at that time. Other service treatment records showed normal blood pressure readings, as well as some elevated blood pressure readings. In light of the above, the Board finds that the Veteran is entitled to a VA examination to determine the etiology of his currently diagnosed hypertension. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i) 2. Entitlement to service connection for a stroke is remanded. The Veteran asserts that his stroke is secondary to his hypertension. Therefore, the claim for service connection for a stroke is inextricably intertwined with the claim for service connection for hypertension. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise to determine the nature and etiology of his hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to any in-service disease, event, or injury. In doing so, the examiner must consider and discuss the normal and elevated blood pressure readings during service, the heart murmur found during service, and the Veteran’s statements concerning the onset of his hypertension. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel