Citation Nr: 18157028 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-52 957 DATE: December 11, 2018 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss, is reopened. New and material evidence having been received, the claim for service connection for tinnitus, is reopened. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for bilateral hearing loss was previously denied in a May 2010 rating decision. The Veteran did not file an appeal, and the rating decision became final. Since then, new and material evidence has been received that relates to unestablished facts that are necessary to substantiate the claim, and it is reopened. 2. The Veteran’s claim for entitlement to service connection for tinnitus was previously denied in a May 2010 rating decision. The Veteran did not file an appeal, and the rating decision became final. Since then, new and material evidence has been received that relates to unestablished facts that are necessary to substantiate the claim, and it is reopened. 3. Resolving all doubt in the Veteran’s favor, the Veteran’s current bilateral hearing loss is related to his active military service. 4. Resolving all doubt in the Veteran’s favor, the Veteran’s tinnitus was incurred during the Veteran’s active military service, and has continued to the present. CONCLUSIONS OF LAW 1. New and material evidence has since been received, and the claim for entitlement to service connection for bilateral hearing loss, is reopened. 38 U.S.C. §§ 1110, 5107(b), 5108 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. New and material evidence has since been received, and the claim for entitlement to service connection for tinnitus, is reopened. 38 U.S.C. §§ 1110, 5107(b), 5108 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from December 1967 to April 1968. The Veteran also had additional Reserve service through August 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran’s claims were originally denied by the RO in a May 2010 rating decision for lack of nexus, but were subsequently reopened (upon receiving new evidence) in December 2011. The RO again denied the Veteran’s claims in September 2013, citing that the new evidence was not material because it failed to prove the worsening of the Veteran’s pre-existing hearing loss disability in order to establish service connection by aggravation. Notwithstanding the RO’s position, the Board is not bound by whether the claims should be reopened, and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New and Material Evidence for Bilateral Hearing Loss and Tinnitus The Veteran submitted new documents in December 2011, which included proof of his military occupational specialties (MOS), to show his current diagnosis of bilateral hearing loss and tinnitus are directly related to his military service. Reopening a claim for service connection which has been previously and finally disallowed, requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); Graves v. Brown, 8 Vet. App. 522, 524 (1996). “New evidence” means existing evidence not previously submitted to the VA. “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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran was denied entitlement to service connection for bilateral hearing loss and tinnitus in May 2010 on the basis of an April 2010 VA examiner’s opinion that it is less than 50/50 percent likely that the Veteran’s bilateral hearing loss and tinnitus are caused or aggravated by noise exposure while the Veteran was in the military. The Veteran did not appeal this decision and the May 2010 rating decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Subsequently, the Veteran has provided additional documentation of all of his MOS’s, to show that his bilateral hearing loss and tinnitus are directly related to his active military service. Upon review, the Board finds this evidence is both new and material evidence sufficient to reopen the Veteran’s claim. The evidence is new in that it was not of record at the time of the last final rating decision, and the evidence is “material” because it relates to an unestablished fact necessary to substantiate the underlying service connection claim. It also provides a complete picture of the specific circumstances under which the Veteran was exposed to significant noise while he was in the military. As a result, the Board finds that the evidence raises a reasonable possibility of substantiating the Veteran’s claim. 38 C.F.R. § 3.156 (a). As the credibility of new evidence is generally presumed, the Veteran’s claim of entitlement to service connection for bilateral hearing loss and tinnitus is reopened. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Service Connection The Veteran, through his attorney, contends that he had mild to moderate hearing loss at the time of his military enlistment in December 1967, which was aggravated by his significant in-service noise exposure, resulting in his current profound bilateral hearing loss, and tinnitus disabilities. The Veteran further contends that his military occupational specialties (MOS) by which he was respectively and directly exposed to very loud gunnery noises, without ear protection, were not taken into consideration by the VA examiner, which resulted in his “no-nexus” opinion. See, April 2010 VA Form 21-4138. See, July 2013 VA Form 21-4138. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (2017). When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App.at 89. Additionally, other organic diseases of the nervous system, which may include sensorineural hearing, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If an increase in disability is shown during service, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). To establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same, and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Bilateral Hearing Loss The Veteran had an enlistment audiological evaluation in September 1967, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded in 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 to the Veteran’s appeal. As it relates 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 standard for evaluating hearing loss was 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 recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 The result of the Veteran’s September 1967 authorized audiological evaluation for 500, 1000, 2000, and 4000 Hertz levels were -10, -10, -10 and 40, on the right ear, and -5, -10, -5 and 35 on the left ear, respectively. The converted results for pure tone thresholds in decibels are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 45 LEFT 10 0 5 40 Speech recognition scores using the Maryland CNC test were not recorded. Based on the 4000 Hertz decibel levels, the VA has acknowledged that the Veteran had a mild hearing loss upon entry into service, as noted in his September 1967 enlistment examination. See, Veteran’s service treatment record. See, April 2010 VA examination records. Therefore, presumption of soundness does not apply to the Veteran’s bilateral hearing loss claim. Comparatively, upon the Veteran’s separation from active duty in April 1968, the result of the Veteran’s authorized audiological evaluation for 500, 1000, 2000, 3000 and 4000 Hertz levels were 10, 10, 10. 10 and 20, for the right ear, and 10, 10, 10, 10 and 10 for the left ear, respectively. In converting the Veteran’s April 1968 authorized audiological separation results, pure tone thresholds in decibels are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 20 25 LEFT 25 20 20 20 15 Speech recognition scores using the Maryland CNC test were also not recorded. These results would actually support the conclusion that the Veteran had normal bilateral hearing at the time of his separation from active duty in April 1968. The VA examiner also referenced the results of the Veteran’s April 1976 audiological evaluation, which was administered during the Veteran’s active duty for training (ACDUTRA). Since this examination was taken post September 1975, it does not need to be converted. Pure tone thresholds in decibels are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 10 45 LEFT 20 20 15 10 40 There are no records for speech recognition scores using the Maryland CNC test. As noted by the VA examiner, these results show that the Veteran had a mild bilateral hearing loss (40 decibels or greater) in April 1976, with very similarly levels at 4000 Hertz levels for both the right and left ear. See, April 2010 VA examination records. The Veteran was afforded a VA examination in April 2010 for his service connection claims for bilateral hearing loss and tinnitus. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 70 90 85 LEFT 60 70 90 100 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 32 in the left ear. During this examination, the VA examiner diagnosed the Veteran with a profound bilateral hearing loss, and in addition, tinnitus, which constitute disabilities for VA purposes. See, April 2010 VA examination; 38 C.F.R. § 3.385. Hence, the Veteran has current disabilities of bilateral hearing loss and tinnitus. However, as to causal relationship (nexus), the VA examiner opined that the Veteran’s hearing loss was not “permanently aggravated by his military service” as a result of noise exposure while in the military. The VA examiner also stated that his conclusion was based on the Veteran’s audiometric enlistment record which indicated that the Veteran had a mild hearing loss upon enlistment, but that eight years after separation from active military service (but during ACDUTRA), the Veteran’s hearing loss diagnosis remain the same. See, April 2010 VA examination. See, Veteran’s service treatment record. The Board notes that the VA examiner appears to have formulated his April 2010 opinion solely based on the absence of documented treatment in service showing a significant in-service threshold shift present. Yet, establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App.at 89. It is unclear why there is such a significant difference in the results of the Veteran’s audiological enlistment examination in September 1967, compared to his April 1968 separation examination, taken six months later. The Board finds that this can reasonably be interpreted to mean that either the Veteran’s hearing significantly improved while in active duty (less plausible) or that one or both of these audiological examinations, upon entry or upon separation, were not correctly administered; hence, either one or both of these audiological evaluations may not have correctly reflected the Veteran’s hearing ability at those specific times. It is more likely that that the Veteran did not have a mild hearing loss at the time of his enlistment, contrary to what was noted in his record, and given this fact, that the mild hearing loss reflected in his July 1976 audio examination, in fact shows a significant shift, since his hearing can be deemed to be normal at entry. The Board further notes that the enlistment examiner did not diagnose a hearing defect at that time. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012) Further, even though the VA examiner opined that the Veteran’s hearing loss diagnosis (mild hearing loss) remained the same upon his enlistment record, compared to his July 1976 audiometric results (also mild hearing loss), it is worth noting that the Veteran’s hearing acuity for all (25 decibels respectively for 500, 1000 and 2000 Hertz) but the 4000 Hertz level, decreased. As such, even though the Veteran’s diagnosis remained the same, there was some negative shift in the Veteran’s hearing level during his period of service. See, April 2010 VA examination record. See, Veteran’s service treatment record. Given that the Veteran’s enlistment audiological test result is subject to different interpretations, the Board does not find that hearing loss was in fact noted on entry into service sufficient to rebut the presumption of soundness. Moreover, VA has not then met its burden by a clear and unmistakable evidence to show that the Veteran’s bilateral hearing loss existed prior to service and that such hearing loss was not aggravated by service. 38 C.F.R. § 3.304(b). Thus, the claim becomes one of direct service connection. Accordingly, given the fact that there is some expert opinion finding the existence of hearing loss disability in service, and bilateral hearing loss shown after service, the Board finds that sufficiently chronicity has been shown to warrant entitlement to service connection for hearing loss on a direct basis. Tinnitus As previously noted, the Board acknowledges that the record reflects that the Veteran has a current disability of tinnitus. Regarding the element of nexus for the Veteran’s tinnitus disability claim, the VA examiner opined that the Veteran’s tinnitus is less likely than not (less than 50 percent probability) related to his military service because his service treatment records does not contain any complaints or diagnosis. See, April 2010 VA examination record. The law, however, clearly provides that this cannot be the sole basis for a “no-nexus” opinion. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Subsequent to the RO’s original denial of his claims in May 2010, the Veteran provided additional documents to prove that his military occupational specialties (MOS) while in service included Track Vehicle Mechanic and a 63T MOS inclusive list, which the RO has acknowledged is consistent with a high probability of exposure to hazardous noise. See, September 2013 Rating Decision. This is also gives credence to the Veteran’s assertions of his significant exposure to noise while serving in the military and during his active duty for training (ACDUTRA), and the he started experiencing “ringing of his ears” while he was in service. See, April 2010 VA Form 21-4138. See, July 2014 Notice of Disagreement (NOD). See, October 2016 VA Form 9. See, April 2010 VA examination record. Consequently, the Board accepts the Veteran’s assertions of significant in-service noise exposure as consistent with the circumstances of his service. 38 U.S.C. § 1154(b). The Board further acknowledges that the Veteran is considered competent to report his symptoms of ringing of his ears, based on his own lay assertions, in addition to the continuity of such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Given the Veteran’s statements of his significant exposure to noise while in the military because of the nature of his duties, as noted above, the Board finds that the most credible evidence of record establishes the in-service incurrence of an injury; in this case, the acoustic trauma. Further, the Board notes that the Veteran is competent to identify reduced tinnitus and he is competent to report when he first started experiencing those symptoms, as he has done in this case. Heuer v. Brown, 7 Vet. App. 379 (1995). As the Board finds the Veteran competent and credible with respect to his observable symptoms and in-service occurrences that can be attributed to acoustic trauma, the Board assigns a high probative value to the Veteran’s statements. Therefore, in weighing all of the evidence of record, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s current tinnitus was incurred in his active military service. Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that service connection for his bilateral hearing loss and tinnitus is warranted. 38 U.S.C. 1101, 1131, 5107(b); 38 C.F.R. 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.B. King, Associate Counsel