Citation Nr: 18157200 Decision Date: 12/13/18 Archive Date: 12/11/18 DOCKET NO. 14-17 641 DATE: December 13, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for tinnitus is reopened. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. An unappealed July 2008 rating decision denied entitlement to service connection for bilateral hearing loss. 2. Evidence received since the July 2008 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss. 3. An unappealed July 2008 rating decision denied entitlement to service connection for tinnitus. 4. Evidence received since the July 2008 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for tinnitus. 5. A bilateral hearing loss was not demonstrated during the Veteran’s active-duty service, a sensorineural hearing loss was not compensably disabling within a year of separation from active duty, and a bilateral hearing loss is not otherwise etiologically related to service. 6. Tinnitus was not demonstrated during the Veteran’s active-duty service, it was not compensably disabling within a year of separation from active duty, and it is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The July 2008 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5103, 5103A, 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 2. The July 2008 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. §§ 5103, 5103A, 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 3. A bilateral hearing loss was not incurred in or aggravated by service, nor may a sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 4. Tinnitus was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to October 1979. New and Material Evidence Entitlement to service connection for bilateral hearing loss and tinnitus were denied in a July 2008 rating decision on the basis that audiological testing did not reveal a hearing loss in either ear for VA purposes, and on the basis that tinnitus was not shown to have been incurred in, or to be otherwise related to service. The appellant did not perfect a timely appeal to that decision, and it is final. 38 U.S.C. § 7105. The Veteran has submitted a claim to reopen the issues of entitlement to service connection for bilateral hearing loss and tinnitus. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). March 2012 private audiological records revealed sufficient hearing impairment to support a claim for hearing loss for VA purposes. At a January 2014 VA examination, the Veteran first reported to a medical professional that his tinnitus began during his active-duty service. This evidence is presumed credible for the limited purpose of reopening the claim. See 38 C.F.R. § 3.156 (a). The Board finds that the evidence received since the July 2008 rating decision is new and material as to both claims on appeal. That is, it relates to unestablished elements of the existence of a current hearing loss disability, and the etiology of tinnitus, each necessary to substantiate the appellant’s claims. As this evidence raises a reasonable possibility of substantiating the claims, it is new and material. The claims of entitlement to service connection for hearing loss and tinnitus are therefore reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Service Connection Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection for sensorineural hearing loss and tinnitus may be established on a presumptive basis if those disorders were manifested to a compensable degree within one year following discharge from active duty. 38 C.F.R §§ 3.307, 3.309(a). Hearing loss The Veteran contends that he has a bilateral hearing loss which is related to in-service noise exposure. His DD-214 reflects a military occupational specialty of air defense artillery short range gunnery crewman. At his February 2016 Board hearing the Veteran reported that during service he fired artillery without hearing protection two to three times per month. For the 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The question for the Board is whether the Veteran has a current sensorineural hearing loss that was chronic in service, whether bilateral sensorineural hearing loss was manifested to a compensable degree within one year of discharge from active duty, or whether a bilateral hearing loss began during service or is at least as likely as not related to an in-service injury or disease. After reviewing the evidence, the Board finds that, while the Veteran has a bilateral hearing loss, it was not demonstrated in service. Further a bilateral sensorineural hearing loss was not manifest to a compensable degree within a year of the appellant’s separation from active duty. Finally, there is no competent evidence showing a continuity of hearing loss symptomatology since service. As such, entitlement to service connection for a bilateral hearing loss is denied. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). A review of the Veteran’s service treatment records is significant for August 1979 audiological testing results demonstrating a right ear hearing loss of 40 decibels at 500 Hertz. September 1976, November 1977, June 1978 and June 1979 audiological examinations demonstrated normal hearing for VA compensation purposes bilaterally. 38 C.F.R. § 3.385. The service treatment records are otherwise silent for complaints or diagnoses of hearing loss, and on a November 1979 report of medical history the Veteran denied that he had ever had hearing loss or ear trouble. A May 2008 VA audiological examination revealed normal hearing for VA purposes, though the examiner opined that the Veteran had a mild conductive hearing loss in the left ear. On twenty-two separate private audiological examinations conducted between July 1999 and April 2011 the Veteran exhibited normal hearing for VA compensation purposes. A March 2013 private examination showed bilateral hearing loss. Based on those results, the private physician, Dr. J.H. assessed a bilateral sensorineural hearing loss and noted the Veteran’s report that his hearing loss began in the military, and that he was exposed to artillery noise. On a January 2014 VA examination, audiological testing again demonstrated normal hearing for VA purposes. In May 2018 the Board requested a medical opinion regarding the Veteran’s claims. In response, in August 2018 a VA audiologist opined that the Veteran’s bilateral hearing loss noted on the March 2012 private audiogram was not at least as likely as not related to an in-service injury or disease, including in-service noise exposure. The examiner opined that there were no significant threshold shifts in hearing demonstrated between the September 1976 entrance examination and the 2008 and 2014 VA examinations, indicating that the mild right ear hearing loss found on separation in 1979 was only temporary. Additionally, the examiner stated that the mild low frequency hearing loss demonstrated by the September 1979 test was not characteristic of noise-induced hearing loss. The Board acknowledges that as an organic disease of the nervous system, a sensorineural hearing loss is a disorder which, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 C.F.R. §§ 3.307, 3.309. The Board also acknowledges that a right ear hearing loss was demonstrated in service. However, the medical evidence preponderates against finding that a sensorineural hearing loss was either manifested in service, or to a compensable degree within one year after separation from active duty. In this regard, there is no medical evidence that the right ear hearing loss found on the September 1979 examination was sensorineural in nature. The medical evidence thus preponderates against finding manifestations sufficient to identify a chronic hearing loss disorder in service. As numerous subsequent examinations found no hearing loss for VA purposes, the medical evidence also preponderates against finding a continuity of hearing loss symptomatology following service. Thus, service connection is not warranted on a presumptive basis. 38 C.F.R. § 3.303(b). Regarding a direct theory of entitlement, the Board acknowledges the April 2012 notation of Dr. J.H. that the Veteran reported his hearing loss began in service. However, this notation appears to have been based on the Veteran’s report alone, and Dr. J.H. provided no express rationale to support any conclusion that the Veteran’s hearing loss was, in fact, incurred in service. By contrast, the August 2018 VA audiologist’s opinion was based on a thorough review of the record, and was supported by a complete rationale. As such, the Board attributes greater probative value to the August 2018 opinion. The Board acknowledges the Veteran’s contentions that his hearing loss was caused by in-service noise exposure, that it began in service and that it was continuous since service. The Veteran, however, is not competent to provide a diagnosis in this case or determine that any symptoms were manifestations of a sensorineural hearing loss, or of hearing loss for VA compensation purposes generally. The diagnosis and etiology of the appellant’s hearing loss are medically complex, requiring knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board thus gives more probative weight to the competent and contemporaneous medical evidence of record, that being the service treatment records, the numerous audiological examinations demonstrating normal hearing, and the August 2018 VA audiologist’s opinion. Thus, the evidence preponderates against finding that a sensorineural hearing loss was manifested in service, or was compensably disabling within a year of the Veteran’s separation from active duty, or was directly related to any event or injury during service. The claim is denied. Tinnitus The Veteran also contends that he has tinnitus which is related to in-service noise exposure. The question for the Board in this regard is whether tinnitus was a chronic disorder in service, whether tinnitus was manifested to a compensable degree within one year of discharge from active duty, or whether tinnitus began during service or is at least as likely as not related to an in-service injury or disease. After reviewing the evidence, the Board finds that, while the Veteran has tinnitus, it was not demonstrated in service. Further tinnitus was not manifest to a compensable degree within a year of the appellant’s separation from active duty. Finally, there is no competent, credible evidence showing a continuity of tinnitus symptomatology since service. As such, entitlement to service connection for tinnitus is denied. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The service treatment records are silent for any complaints of tinnitus. In a November 1979 report of medical history, the Veteran denied currently having or having ever had, a history of ear trouble. The first documented report of tinnitus is the Veteran’s December 2007 claim for benefits, in which he indicated that his tinnitus began in 1977. At a May 2008 VA examination, the Veteran reported having had periodic tinnitus since 1984 in the left ear only. At a January 2014 VA examination, the Veteran reported that tinnitus began in 1977. At his February 2016 Board hearing, he stated that he first noticed ringing in his ears one week after leaving service (i.e., 1979). In her August 2018 opinion, the VA audiologist opined that it was not at least as likely as not that tinnitus was incurred in service, or was related to in-service noise exposure. The rationale was that the evidence of record was insufficient to support an in-service incurrence of tinnitus, or a relationship of tinnitus to any in-service injury. Significantly, the examiner noted that the earliest evidence of a report of tinnitus was decades after separation from service. The Board finds that the Veteran’s lay testimony regarding the onset of his claimed tinnitus is not credible, based on his contradictory statements. In this regard, the Veteran has provided numerous inconsistent statements regarding when his tinnitus first began. Additionally, despite his reports that tinnitus began in service, the Veteran expressly denied any history of ear trouble on a November 1979 report of medical history. Finally, the Veteran’s first allegation that tinnitus began in service was first made decades after separation, in the course of a claim for benefits. See Buchanan v. Nicholson, 451 F.3d 1331 (2006) (the Board can consider bias in lay evidence, the lack of contemporaneous medical records, and significant time delay between the observations and the date on which the statements were written in weighing credibility.) The Board acknowledges that as an organic disease of the nervous system, tinnitus is a disorder which, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 C.F.R. §§ 3.307, 3.309. However, given that the Veteran’s statements are not credible, there is no credible evidence that tinnitus began in service, or manifested to a compensable degree within one year of separation from active duty. Therefore, the presumption regarding chronic diseases is not applicable here. See 38 C.F.R. §§ 3.307, 3.309. As regards direct service connection, the most probative evidence of record is the August 2018 medical opinion. That audiologist found that tinnitus was less likely than not incurred in service, due to insufficient evidence of an onset of tinnitus in service, or a relationship to an in-service injury. As the Veteran’s testimony regarding an in-service onset of tinnitus is not taken as credible for the reasons outlined above, no competent, credible evidence of record contradicts the findings   of the August 2018 reviewer. As such, the totality of the evidence of record preponderates against the claim. The claim is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Paul J. Bametzreider, Associate Counsel