Citation Nr: 1807292 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 17-24 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1956 to April 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied reopening the Veteran's claim for service connection for bilateral hearing loss and tinnitus as the evidence submitted was not new and material. In January 2016, the Veteran filed his notice of disagreement, was issued a statement of the case in April 2017, and in May 2017 perfected his appeal to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012). FINDINGS OF FACT 1. In a November 2014 rating decision, the RO denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received since the November 2014 rating decision relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. In a November 2014 rating decision, the RO denied the Veteran's claim of entitlement to service connection for tinnitus. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 4. Evidence received since the November 2014 rating decision relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim of service connection for tinnitus. 5. The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss is related to in-service noise exposure. 6. The evidence is at least evenly balanced as to whether the Veteran's tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. The November 2014 rating decision that denied the claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the previously denied claims for entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The November 2014 rating decision that denied the claim of entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. New and material evidence has been received to reopen the previously denied claims for entitlement to service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. With reasonable doubt resolved in favor of the Veteran, the criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 6. With reasonable doubt resolved in favor of the Veteran, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Prior to the filing of the current claim of entitlement to service connection for bilateral hearing loss and tinnitus, the AOJ previously denied the claims in a November 2014 rating decision. The Veteran did not appeal this decision and no new and material evidence was received within one year of this decision. As such, it became final. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2017). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights. 38 U.S.C. § 7105 (b) (1) (2012); 38 C.F.R. §§ 3.103 (b) (1), 19.25, 20.1103 (2017). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2017). An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ's decision and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (2017). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b) (1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the 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. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159 (c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Regarding bilateral hearing loss and tinnitus, service connection was denied as there was no medical evidence of a link between the Veteran's bilateral hearing loss and tinnitus, and acoustic trauma he suffered in service. In November 2015 the Veteran submitted a statement that he has had difficulty with his hearing and ringing/ buzzing in his ears since he was on active duty service. The Board notes that the Veteran is competent to report his observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Based on the foregoing, the Board finds that the evidence that has been added to the Veteran's claims file since the November 2014 rating decision is new in that it had not been previously submitted. As discussed above, this new evidence relates to unestablished facts regarding a nexus which is necessary to substantiate the claims for service connection for bilateral hearing loss and tinnitus. Accordingly, the Board finds that because this evidence addresses elements of the Veteran's claims that were not present in November 2014, it is considered to be material. This new evidence, when considered by itself or in conjunction with the evidence previously of record, relates to unestablished facts necessary to substantiate the Veteran's claims and is not cumulative or redundant in nature. Therefore, the evidence is considered to be new and material and the claims are reopened. 38 C.F.R. § 3.156 (a). II. Service connection The Veteran contends that his bilateral hearing loss and tinnitus are the result acoustic noise exposure suffered while working as a radio repairman in service. He stated that he worked on the flight line and was exposed to noise from jet aircraft. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §1131 ; 38 C.F.R. § 3.303 (a). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran's medical examination and medical history reports are silent as to any hearing issues upon entrance or at separation from service. A January 1957 service treatment note shows indicates that the Veteran's right ear was "stopped up" for 24 hours. In August 1959, his puretone thresholds at 500,1000, 2000, and 4000 Hz were 5, 5, 5, 5 dB respectively for the right ear, and 10, 5, 5, 5 dB respectively for the left ear. (Puretone threshold decibels at 3000 Hz were not reported.) In April 1960, his puretone thresholds at 500,1000, 2000, and 4000 Hz were -5, -5, -10, and 0 dB respectively for the right ear, and 10, -5, 0, 0 dB respectively for the left ear. (Puretone threshold decibels at 3000 Hz were not reported.) The Veteran's personnel records indicate that he served as an airborne radio repairman. He stated that he worked on the flight line for 3 and a half years and lived in barracks close to where planes took off and landed 24 hours a day. He also stated that the was exposed to loud alerts with no ear plugs which contributed to his hearing loss and tinnitus. April 2014 VA treatment records indicated that the Veteran reported suffering constant ringing in his ears for 20 years; intermittent heart beat in both ears for 6 months; imbalance while standing for about 1 year; and hearing his own voice in his left ear when he is speaking for about 6 months. An otoscopy revealed monomeric right tympanic membrane and was unremarkable in the left ear. Speech reception thresholds were consistent with puretone thresholds and word recognition scores were 68 percent in the right ear and 72 percent in the left ear. Tympanometry indicated slightly reduced compliance in both ears. An October 2014 disability benefits questionnaire (DBQ) reported that the Veteran's puretone thresholds at 500,1000, 2000, 3000 and 4000 Hz were 20,60, 60 65 and 70 dB respectively for the right ear, and 20, 45, 50, 60, 75 dB respectively for the left ear. His speech discrimination score using the Maryland CNC test was 56 percent for his right ear, and 82 percent for his left ear. The audiologist diagnosed bilateral sensorineural hearing loss with no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz for either ear. The audiologist opined that the Veteran's bilateral hearing loss is not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. She noted that the chief complaint is bilateral hearing loss which the Veteran stated he has noticed for 2 to 3 years, and that the Veteran reported constant bilateral ringing for "as long as I can remember." The audiologist noted that the Veteran was exposed to jet aircraft while working on the flight line; his barracks were next to flight line; and that the Veteran denied occupational or recreational noise exposure. The audiologist's report indicated that at enlistment a whispered voice test was administered, and that audiological examinations in August 1959 and August 1960 (separation) showed completely normal hearing bilaterally. The audiologist also referenced a September 2005 Institute of Medicine Report on noise exposure in the military, "Noise and Military Service-Implications for Hearing Loss and Tinnitus," which concluded that based on current knowledge noise -induced hearing loss (NIHL) occurs immediately, i.e., there is no scientific support for delayed onset NIHL weeks, months, or years after the exposure event. The report also noted that the most pronounced effects of a given noise exposure on pure-tone thresholds are measureable immediately following the exposure. The Audiologist also referenced the NOISE MANUAL (Fifth Edition, edited by Berger et al., AIHA Press 2000, p.125), which stated "only seldom does noise cause a permanent tinnitus without also causing hearing loss." The audiologist concluded that the Veteran's current bilateral hearing loss and tinnitus are less likely as not a result of military noise exposure. In November 2015, the Veteran submitted a statement wherein he addressed his statements to the VA audiologist. He stated that the audiologist's interpretation that he "reported hearing loss within the past two to three years" was incorrect, and that what he meant was that he received an official diagnosis and hearing aids in the past few years. The Veteran reiterated that he has had difficulty with his hearing and ringing in his ears since active duty, but since he has been divorced and single for the past 20 years did not realize how profound his hearing loss had become, noting that his ex-wife thought he was ignoring her when in fact, he simply had not heard her. The evidence demonstrates that the Veteran has a current hearing disability as the October 2014 DBQ indicated that there was at least one threshold in each ear above 40 decibels and speech recognition scores were less than 94 percent in each ear. The Veteran has thus met the current disability requirement. In addition, the Veteran reported that he was exposed to acoustic noise while working on the flight line as a radio repairman, as well as while living in the barracks near the flight line. The Veteran is competent to assert the occurrence of an in-service injury, to include noise exposure. See Jandreau, 492 F.3d at 1376-77. The in-service injury requirement has therefore been met, and the dispositive issue in this case is one of nexus. The Veteran has provided competent and credible statements with respect to his hearing loss disability. He has stated that he has suffered from hearing loss since active duty and explained his statements to the October 2014 audiologist were misinterpreted and failed to reflect the true duration of his disability. He also stated that during the past 20 years he has lived alone and was unaware of the severity of his hearing loss, but stated he was oftentimes unable to hear his ex-wife during the duration of the marriage. The Veteran is competent and credible to describe the continuity of symptomatology for his hearing loss as it existed from his time of service, and the progressive worsening of symptoms through the years. See Jandreau, 492 F.3d at 1377. The Board notes the negative medical nexus opinion regarding the etiology of the Veteran's bilateral hearing loss. The October 2014 audiologist opinion is flawed, however, because while the audiologist based her opinion on service treatment examinations and medical publications, she also relied upon the misinterpretation that the Veteran had suffered from bilateral hearing loss for only "2 to 3 years". She was not able to address the Veteran's statements that his hearing difficulties began during service or properly consider the impact of his noise exposure during service on his assertions of suffering hearing loss since service. The opinion is therefore entitled to little probative weight. Buchanan, 451 F.3d at 1336 n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The evidence is thus at least evenly balanced as to whether the Veteran's bilateral hearing loss is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). The Board also finds that the evidence, including the Veteran's competent testimony as to ringing in the ears, demonstrates that the Veteran has a current tinnitus disability. See Charles, 16 Vet. App. at 374 ("ringing in the ears is capable of lay observation"). Moreover, as noted above, there is competent and credible evidence of in-service noise exposure. In addition, April 2014 VA treatment records indicate that the Veteran reported suffering constant ringing in his ears for 20 years; he reported constant bilateral ringing for "as long as I can remember" during his October 2014 DBQ; and in November 2015 he stated he has suffered ringing in his ears since service. While there is some inconsistency in these statements, there is no requirement in VA's laws or regulations that precise dates or time periods must be provided, and the Veteran's statements are consistent in indicating that he has had longstanding tinnitus. While the October 2014 audiologist opined that the Veteran's tinnitus was less likely as not a result of military noise exposure, it relied on a report which stated "only seldom does noise cause a permanent tinnitus without also causing hearing loss." Given the Board's finding above that the in-service noise exposure caused the Veteran's hearing loss, this opinion supports a nexus between the Veteran's tinnitus and service. There is no additional evidence which directly contradicts the Veteran's assertions that he experienced tinnitus during service, and the Board finds no reason to question the veracity of the Veteran's assertions in this regard, and such assertions are credible. The evidence is thus at least evenly balanced as to whether the Veteran's tinnitus is related to in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). ORDER The application to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. The application to reopen a claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs