Citation Nr: 1806528 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 15-12 434 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran had active service from May 1955 to May 1959. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2012 determination of the VA RO. In November 2017, the Veteran appeared at a video hearing before the undersigned. Additional evidence has been associated with the Veteran's claims file following the issuance of the statement of the case (SOC). However, as the Veteran has submitted a waiver of initial review by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304, the Board finds no prejudice to the Veteran in proceeding to adjudicate the claims, as done below. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). FINDINGS OF FACT 1. By a November 2002 rating decision, the Veteran's claims for service connection for bilateral hearing loss and tinnitus were denied on the basis that these conditions neither occurred in nor were caused by service. 2. Evidence received since the November 2002 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claims for service connection for bilateral hearing loss and tinnitus. 3. The Veteran's right ear hearing loss was not demonstrated to a compensable degree within one year of discharge from active duty, and the most probative evidence of record does not show the Veteran's right ear hearing loss to be etiologically related to a disease, injury, or event in service. 4. The most probative evidence of record shows the Veteran's left ear hearing loss is etiologically related to service. 5. The most probative evidence of record does not show the Veteran's tinnitus to be etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The November 2002 rating decision denying the Veteran's claims for service connection for tinnitus and bilateral hearing is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran's claims of service connection for bilateral hearing loss and tinnitus has been submitted. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. Right ear hearing loss was not incurred in or aggravated by active service, nor may right ear sensorineural hearing loss be presumed to have been incurred therein. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 4. Service connection is warranted for left ear hearing loss. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 5. Tinnitus was not incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. In November 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Jude (VLJ). The Veteran has not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To establish a right to compensation for a present disability, a Veteran must show: "(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, 1167 (Fed. Cir. 2004). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As organic diseases of the nervous system, such as hearing loss, are listed as a "chronic disease" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply to the Veteran's hearing loss claim. With respect to hearing loss disability, VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § 3.385 (2017). "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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." The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The first issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claims of entitlement to service connection for bilateral hearing loss and tinnitus. After review of the evidence of record, the Board finds that new and material evidence has been submitted. The Veteran's claims for service connection for bilateral hearing loss and tinnitus were previously denied in a November 2002 rating decision. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means evidence not previously submitted to agency decision makers. 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) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The basis for the November 2002 denial was that the Veteran's bilateral hearing loss and tinnitus neither occurred in nor were caused by service. At the time of this denial, the Veteran's service treatment records and post-service medical records were considered. The new evidence submitted since this denial consists primarily of testimony and statements from the Veteran, post service medical records, and August 2012 and February 2015 VA examination reports. With regard to the newly submitted medical evidence, the claims file contains a November 2017 private medical opinion noting that the Veteran's bilateral hearing loss and tinnitus were as least as likely as not caused by or a result of military noise exposure. As the newly submitted evidence suggests that the Veteran's current hearing loss and tinnitus are related to his service, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate these claims. As such, these claims are reopened. The RO also reopened these claims and considered them on the merits. Turning to the issue of whether these disabilities are related to service, the Veteran claims that he incurred hearing loss and tinnitus as a result of his service. Specifically, the Veteran testified at the November 2017 hearing that he was exposed to loud or excessive noise while working as an electronics technician during service. He testified that he flew on long flights, where the plane would be struck by lightning and static would bang in his ear. He testified that engine noise was loud as well. On his April 2015 VA Form 9, the Veteran reported that he would get sudden jolts of static when searching for a station to send Morse code and that he would have to turn the volume up very loud to hear on his headset. In a July 2014 statement, the Veteran asserted that he had ringing in his ears since he left Morocco during service. Service treatment records do not reveal any complaints, diagnoses, or treatment for hearing loss or tinnitus. Whispered and spoken voice tests conducted upon entrance into service in April 1955 and upon separation from service in May 1959 yielded results of 15 out of 15. In support of his claim, as noted above, the Veteran submitted a November 2017 private medical opinion from an audiologist at Florida Gulf Coast Hearing Center stating that the Veteran's bilateral hearing loss and tinnitus were as least as likely as not caused by or a result of his military noise exposure. The physician noted that VA training letter 10-028 states delayed onset can happen years later, as does another study. The physician noted that the Veteran served in the Navy during the cold war in a RSD aircraft, where he was exposure to damaging noise for extended periods of time. This leads to hearing loss and tinnitus (onset may be delayed). On an attached audiogram, the audiologist also noted that the Veteran has had tinnitus since his discharge from the Navy. In August 2012, the Veteran underwent a VA examination, at which the examiner responded "No" to the question of whether the Veteran's hearing loss was at least as likely not caused by or a result of an event in military service. The examiner essentially found that, as frequency specific hearing tests using calibrated audiometrics were not available, association of cause (military, recreational, or presbycusis) cannot be established. The examiner opined that, therefore, the Veteran's hearing loss is less likely as not caused by or a result of his military service. The examiner also found that it is less likely as not that the Veteran's tinnitus is related to service. The Veteran reported that he could not remember the circumstances or date of the onset of his tinnitus but that it started while he was in service. The examiner noted that tinnitus due to noise exposure or acoustic trauma is known to have a noticeable onset immediately or soon following the incident; however, the Veteran is non-specific with the onset and cannot make an association; therefore, the examiner opined that tinnitus is not caused by combat noise exposure. In February 2015, the Veteran underwent a VA examination, at which he was diagnosed with hearing loss and tinnitus. The examiner responded "No" to the question of whether the Veteran's right ear hearing loss was at least as likely not caused by or a result of an event in military service. Upon review of the claims file, the examiner essentially noted that, because the Veteran's hearing loss can be described as "flat", meaning that there is not a significant difference in thresholds in the high frequencies than the low to mid frequencies, it is less likely as not that the Veteran's hearing loss in the right ear is due to noise exposure. Rather, it is more likely attributable to the aging process and progression of hearing loss caused by that process. For example, when comparing the February 2015 audiogram to the August 2012 VA examination audiogram, there is progression in hearing loss. This is not from noise exposure during military, which does not have delayed effects, as outlined in further detail in this opinion; rather it is attributable to the aging process. This is evidence of the otologic factors of presbycusis, aging effect on hearing. With regard to left ear hearing loss, the February 2015 examiner responded "Yes" to the question of whether the Veteran's left ear hearing loss was at least as likely not caused by or a result of an event in military service. Essentially, the examiner found that, when reviewing the July 2012 private audiogram, the Veteran's hearing in the left ear is a notched severe loss. This is considered to be outside of the typical aging configuration, as the high frequencies are more affected that the low frequencies. Age and/or general health are contributive factors but cannot be differentially diagnosed from the possibility of acoustic trauma in the left ear while in the military. This is also noteworthy in the reported absence of other contributory noise exposure. With regard to tinnitus, the Veteran reported having tinnitus or "loud ringing" while in Morocco. The February 2015 examiner determined that, based on the conflicting evidence in the medical record, it is less likely that this Veteran's current self-report of tinnitus is due to military noise exposure. During the August 2012 VA examination, the Veteran's report of tinnitus onset was nonspecific without an association to a specific time frame. The Veteran received a denial of the tinnitus claim based on his report. At the February 2015 VA examination, the Veteran's descriptive clarity that the onset was specific to his time in Morocco. There is not any evidence in the VA Medical Center (VAMC) records that date back to 2002 of a complaint of tinnitus prior to 2012. The Veteran may have experienced tinnitus after service in Morocco, but this does not prove that it was persistent or permanent. Not only has the Veteran's report of onset changed significantly but there is no evidence to support his new description of onset. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2017). With regard to the Veteran's left ear hearing loss, the Board acknowledges that the August 2012 VA opinion did not link the Veteran's hearing loss to service. However, the Board notes that this opinion appears to be based largely on the fact that frequency specific hearing tests using calibrated audiometrics were not available during service. The Board does not find that a lack of certain tests during service is evidence that hearing loss could not have occurred during service. As such, the Board finds the August 2012 opinion not probative with regard to the issue of hearing loss. Therefore, as the Board finds the August 2012 VA opinion not probative with regard to the issue of hearing loss, and the February 2015 VA opinion linked the Veteran's current left ear hearing loss to his active duty service, the Board will resolve all reasonable doubt in favor of the Veteran and grant service connection for left ear hearing loss. With regard to the Veteran's right ear hearing loss and tinnitus, there is no medical evidence of record indicating that the Veteran had right ear hearing loss or tinnitus in service, and the February 2015 VA medical opinion specifically did not link the Veteran's tinnitus or right ear hearing loss to service. The Board has considered the November 2017 private medical opinion from the audiologist at Florida Gulf Coast Hearing Center linking the Veteran's hearing loss and tinnitus to military noise exposure. However, the Board finds this opinion not probative, as the audiologist did not provide a rationale that discussed the Veteran's specific types of hearing loss in each ear or his tinnitus in the same detail as the February 2015 VA examiner. In other words, because the 2015 negative opinion was more reasoned, with a supporting medical rationale applied to the specific facts of this case, it is given more evidentiary weight than the positive opinion. The Board notes the Veteran's assertions that his right ear hearing loss and tinnitus are specifically due to his military service. With regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Here, the Veteran's complaints as to duration of symptoms are certainly capable of lay observation, as are his assertions of being exposed to noise during service. However, the Board finds that the causes of his currently diagnosed tinnitus and right ear hearing loss are not capable of lay observation, as the Veteran does not have training in audiological diseases. As such, the Veteran's opinion is afforded little weight in the analysis of whether a nexus between his current tinnitus and right ear hearing loss and his service exists. By contrast, the medical professional who provided the February 2015 VA opinion reviewed the Veteran's claims file and offered opinions with supporting explanations as to why, in her medical judgment, the Veteran's right ear hearing loss and tinnitus are not related to service. As such, the Board places the most significant weight on the February 2015 VA medical opinion, which finds against service connection. Thus, the Veteran's claims for service connection for tinnitus and right ear hearing loss must fail on a direct basis. See Shedden, supra. Additionally, the Board notes that there is no competent or credible evidence of record reflecting that the Veteran demonstrated hearing loss of the right ear to a compensable degree within one year of discharge from active duty. As such, service connection for right ear hearing loss cannot be granted on a presumptive basis. With regard to the issue of continuity of symptomatology for his right ear hearing loss under 38 C.F.R. § 3.303(b), the Veteran's hearing was noted as within normal limits bilaterally on his May 1959 Report of Medical Examination upon separation from service. Moreover, there is no other evidence from within one year of separation from service documenting hearing loss to a compensable degree. There are also no findings of tinnitus manifesting within one year; as the VA examiner noted, several years of VA records prior to the Veteran's claim for compensation showed no complaints or history of tinnitus. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claims for service connection for tinnitus and right ear hearing loss, and the benefit-of-the-doubt rule is not for application. Resolving all reasonable doubt in favor of the Veteran, service connection is granted for left ear hearing loss. (CONTINUED ON NEXT PAGE) ORDER As new and material evidence has been submitted regarding the claim for service connection for bilateral hearing loss, the Veteran's claim is reopened. As new and material evidence has been submitted regarding the claim for service connection for tinnitus, the Veteran's claim is reopened. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs