Citation Nr: 18153009 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 18-48 536 DATE: November 27, 2018 ORDER The claim to reopen the previously denied claim for entitlement to 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 denied. FINDINGS OF FACT 1. The claim for entitlement to service connection for a bilateral hearing loss disability was denied in a September 2011 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to decide the claim. 2. The Veteran’s bilateral hearing loss disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran’s discharge from service. 3. Tinnitus was not manifest in active service and is unrelated to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hearing loss disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. A bilateral ear hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 3.Tinnitus was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1960 to February 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Application to Reopen The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claim for service connection for a bilateral hearing loss disability. 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. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a September 2011 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a bilateral hearing loss disability due to no evidence that the preexisting right ear hearing loss was aggravated by service or the left ear hearing loss was related to service. The Veteran was notified of his appellate rights. A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period. Therefore, the September 2011 rating decision is final. Since the previous denial, the Veteran submitted an August 2016 letter from Dr. R.R. who opined that the Veteran’s hearing loss was “compatible with cumulative noise exposure,” during service. As this evidence had not been previously reviewed by agency makers, the Board finds that it is new evidence under 38 C.F.R. § 3.156 (a). Moreover, the Board finds that the evidence is not only new but also material. It relates to unestablished facts necessary to substantiate the claim and also raises a reasonable possibility of substantiating the claim. In that regard, it relates the Veteran’s hearing loss to service. Accordingly, the Veteran’s claim for service connection for a bilateral hearing loss disability is reopened. Service Connection 1. Entitlement to service connection for a bilateral hearing loss disability and tinnitus The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability and tinnitus due to his in-service exposure to diesel engines while working on the flight deck. See October 2018 VA Form 9. Although the September 2011 rating decision stated that the Veteran’s right ear hearing loss preexisted service and was not aggravated by service, the Board finds that the presumption of soundness applies. The entrance audiogram recorded 45 decibels at 4000 Hertz for the right ear. However, the Veteran’s entrance examination does not list a right ear hearing loss disability. Because the clinical examination was normal, the Board concludes that a right ear hearing loss disability was not “noted” at the time of entrance examination, and that the presumption of soundness applies. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that (1) the Veteran’s disability was both preexisting and (2) it was not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran’s claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. Here, there is no clear and unmistakable evidence that the Veteran’s disability preexisted service. Thus, the government cannot rebut the presumption of soundness and the claim is one of service connection, without consideration of a preexisting condition. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (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, 1166-67 (Fed. Cir. 2004). Service connection on a presumptive basis is also warranted on for chronic disabilities which manifest within a year after discharge from service. 38 C.F.R. §§ 3.307, 3.309. Service treatment records are silent for any hearing loss or tinnitus. Post-service treatment records are also silent for any complaints or treatment for hearing loss. At a February 2011 VA audiology consultation, the Veteran reported a gradual decrease in his hearing over time and symptoms of bilateral constant tinnitus over the last 5 to 8 years. The Veteran was afforded a VA audiological examination in June 2011 where the examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to service because the Veteran reported the onset of hearing related issues, including tinnitus within the past 10 years. The examiner explained that because there was no change in hearing noted during active duty service and the Veteran was discharged over 45 years prior, then the Veteran’s current complaints of hearing loss are not likely a result of in-service military noise exposure. In an August 2016 correspondence, Dr. R.R., Diplomate of the American Board of Otolaryngology, opined that, “[i]t is my feeling that [the Veteran’s] hearing loss is totally compatible with noise-induced sensorineural hearing loss which I believe is a result of his time working in the Navy as a flight mechanic. It is also my feeling that there is no other reason to apportion any of his hearing loss to other causes with the exception of his time in the Navy.” The Veteran was afforded another VA audiological examination in January 2017 where he reported a gradual decrease in hearing sensitivity and symptoms of a low-pitched buzzing sound over the past 20 years. The examiner opined that the Veteran’s bilateral hearing loss and tinnitus were less likely than not related to service. The examiner noted the Veteran’s history of in-service noise exposure and post-service career as a railroad engineer for 30 years. He also noted the Veteran’s recreational noise exposure from driving a Ferrari and as a woodworker. Thus, the Board finds that service connection for a hearing loss disability and tinnitus are not warranted. The Board finds the January 2017 VA medical opinion to be the most probative evidence of record. It was based upon a thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The examiner addressed all conflicting information, including Dr. R.R.’s opinion and explained why he concluded that neither the Veteran’s hearing loss disability nor the tinnitus were related to the Veteran’ service. The Board does not assign any probative value to Dr. R.R.’s opinion. First, Dr. R.R. does not indicate that he has reviewed the Veteran’s service treatment records. The Veteran’s representative’s informal hearing presentation (IHP) inaccurately states that Dr. R.R. “acknowledges seeing the Veteran’s military records.” See November 2018 IHP. Second, Dr. R.R. does not explain the significance, if any, of the Veteran’s in-service noise exposure and the delayed post-service manifestations. Third, Dr. R.R. does not explain any significance of the Veteran’s post-service occupational and recreational noise exposure. Finally, the August 2016 correspondence indicates that Dr. R.R. was following up on a workman’s compensation claim. This begs the question of whether the Veteran’s hearing loss can be attributed to active service or a post-service incident. As Dr. R.R. did not provide any further context to his correspondence, the Board is not able to assign probative value to his statements. It is clear that the Veteran believes that a nexus exists. Such a lay belief sometimes is sufficient. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the question of whether there exists a nexus in this case is medical in nature. Of note in this regard are the complexities of the sensory system and the numerous potential causes of hearing loss. In this case, medical knowledge, training, and/or experience is required to provide a competent opinion on nexus. See Jones v. West, 12 Vet. App. 460 (1999). Thus, while the Board has considered the Veteran’s statements, it finds the VA examination opinion to outweigh them. Although tinnitus is capable of lay observation, the Board notes that the Veteran has not contended that he has suffered from tinnitus continuously since service, but rather only in the 10 years which is more than 45 years post discharge from service. There is no competent evidence which links delayed onset tinnitus to active service. Presumptive service connection is also not warranted because the evidence does not show that a bilateral hearing loss disability was manifest to a degree of 10 percent or more within one year from the date of separation. As the preponderance of the evidence is against the claims for service connection for a bilateral hearing loss disability and tinnitus, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville, Counsel