Citation Nr: 21013441 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 00-13 842 DATE: March 9, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for otitis media is granted. Entitlement to service connection for a bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for otitis media is remanded. FINDINGS OF FACT 1. A March 1971 Board of Veterans' Appeals (Board) decision denied the Veteran’s service connection claim for an ear disorder. 2. Additional evidence received since the March 1971 Board decision relates to previously unestablished facts necessary to substantiate the service connection claim for otitis media. 3. Resolving reasonable doubt in the appellant’s favor, the Veteran’s bilateral hearing loss was at least as likely as not etiologically related to his active service. 4. Resolving reasonable doubt in the appellant’s favor, the Veteran’s tinnitus was at least as likely as not etiologically related to his active service. CONCLUSIONS OF LAW 1. The March 1971 Board decision that denied service connection for an ear disorder is final. 38 U.S.C. § 4004(b) (1970); 38 C.F.R. § 19.104 (1971). 2. The criteria to reopen the service connection claim for otitis media have been met. 38 U.S.C. §§ 5108 7105; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1953 to March 1955. He died in June 2018. The appellant is the Veteran’s surviving spouse, and she has been substituted as the appellant in this appeal. This appeal before the Board of Veterans’ Appeals (Board) arose from a March 1999 rating decision in which a Department of Veterans Affairs (VA) Regional declined to reopen claims for service connection for an ear condition and tinnitus and which denied service connection for hearing loss. In August 2002, the Veteran testified at a videoconference hearing before an Acting Veterans Law Judge (VLJ). After notification that the Acting VLJ that presided over the August 2002 hearing was no longer employed at the Board, the Veteran opted to testify at a new hearing before another VLJ in June 2007. The VLJ who conducted the June 2007 hearing, however, has now since retired and is not available to participate in this decision. The Board notified the appellant of this fact in a January 2021 letter, where she was also informed of her right to a hearing before another VLJ. As the appellant has not responded to that letter, the Board will presume that she does not wish to have another Board hearing. Transcripts of the August 2002 and June 2007 hearings are of record. This appeal has a long procedural history that has been set forth, in detail, in prior appellate actions. To summarize the procedural history, these matters have been remanded to the Agency of Original Jurisdiction (AOJ) for further development multiple times. In March 2008, the Board reopened the Veteran’s service connection claim for tinnitus but denied service connection for bilateral hearing loss and declined to reopen the claim for service connection for otitis media. In an April 2009 Order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (Joint Motion) filed by counsel for the Veteran and the VA Secretary, vacating the March 2008 Board decision to the extent that it denied the matters on appeal, and remanding the matters to the Board for further proceedings consistent with the Joint Motion. These matters were then remanded to the AOJ multiple additional times for further development. New and Material Evidence – Otitis Media Generally, a claim that has been denied in an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105(c), (d). If new and material evidence is presented or secured with respect to a disallowed claim, however, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is 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 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). For the purposes of establishing whether new and material evidence has been received, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). The threshold for deciding whether the new evidence raises a reasonable possibility of substantiating a claim is low. Id. at 117-18. A decision as to whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Thus, regardless of how the AOJ decides a reopening question, the Board must address the question of whether new and material evidence has been presented to reopen a claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Here, in a March 1971 decision, the Board denied service connection for the claimed ear disorder based on a finding that recent examination did not disclose otitis media or otitis externa. The Veteran did not appeal that decision; therefore, the Board decision became final as to this issue. 38 C.F.R. § 20.1100. Evidence of record at that time of the Board decision included the Veteran’s service treatment records (STRs), which reflected multiple instances of treatment for ear pain during service, and diagnoses including chronic otitis media and otitis externa; a September 1969 VA examination report, which indicated that the Veteran’s ear canals and tympanic membranes looked normal; private treatment reports dated in April 1970, a January 1970; statements from the Veteran as to his ongoing ear pain; and the Veteran’s testimony from an August 1970 Board hearing as to his complaints of ear pain and the lack of treatment for this pain. Evidence added to the record since the March 1971 Board decision includes audiological treatment reports from the Veteran’s employer dated from May 1972 through August 1994, documenting his report of suffering a perforation to his ear drum during his active service; private treatment notes dated in October 1990 and January 1997, noting the Veteran’s report of having suffered from a feeling of fullness in his ears dating from the time of his active service, and that he suffered a peripheral vestibular lesion in relation to his exposure to high frequency noise during service; VA treatment records dated from July 2003 to December 2014; a December 2016 VA audiological examination report, noting the Veteran’s history of hazardous noise exposure; transcripts of the Veteran’s August 2002 and February 2008 Board hearing testimony, giving his detailed report regarding the onset of his ear pain and blockages during service as a result of training on the firing range, including with heavy artillery, the continuation of his ear symptoms throughout his service, his post-service treatment for continuing ear problems following his separation from service, and his assertion that current disabilities were the result of his noise exposure during service; and multiple statements from the Veteran revealing his assertions that he received treatment for his claimed ear condition between 1955 and 1967, and reiterating assertions that his ear problems have essentially continued since their onset during his active service. Given the “low threshold” standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence is new and material, as it addresses unestablished facts needed to substantiate the claim. In this regard, the additional records contain competent evidence of ongoing ear problems since the time of the Veteran’s reported in-service ear injuries, including medical evidence tending to establish the presence of current ear disability and tending to corroborate the relationship between ear disability and otitis media and noted ear problems during service. The evidence tends to abrogate the prior deficiency upon which the prior Board denial was based. Thus, the Board concludes that the criteria for reopening the service connection claim for otitis media are met. Service Connection – Bilateral Hearing Loss and Tinnitus 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(a). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury, event, or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Presumptive service connection may be granted for certain chronic diseases, including certain organic diseases of the nervous system (to include sensorineural hearing loss and tinnitus), when manifested to a compensable degree within one year from separation from service, even if there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1112, 1113; Fountain v. McDonald, 27 Vet. App. 258, 259 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In the current appeal and prior to his death, the Veteran contended that his bilateral hearing loss and tinnitus had their onset during his active service due to excessive noise exposure as an infantryman. In resolving reasonable doubt on certain elements of the claims in favor of the appellant, the Board finds that the criteria for service connection for bilateral hearing loss and tinnitus have been met. With respect to the current disability requirement for each disability, the Board notes that, generally, for VA purposes, impaired 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. 38 C.F.R. § 3.385. The Court has found that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Here, the Veteran’s audiological testing results in December 2006, February 2011, and December 2014 confirmed that he had bilateral hearing loss sufficient to satisfy VA disability criteria. With respect to the Veteran’s tinnitus the December 2006 VA examination report also documented his complaint of tinnitus. The Board finds this evidence is sufficient to support a finding that the Veteran had a current tinnitus disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (providing that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when... a layperson is competent to identify the medical condition....”); Charles v. Principi, 16 Vet. App. 370 (2002) (stating that “ringing in the ears is capable of lay observation and, as such, a veteran is competent to testify as to that symptom”). As to in-service noise exposure, the Veteran’s DD Form 214 documented his military occupational specialty (MOS) as a light weapons infantryman, and his assigned unit was part of an armored infantry battalion. Additionally, the Veteran credibly reported during his August 2002 and February 2008 Board hearings that he was exposed to hazardous noise during his training duties. He reported firing an M75 rifle, a 30-caliber machine gun, and firing mortar rounds during training exercises. He additionally credibly testified that he noticed hearing loss after his training exercises, and that he also began having a buzzing in his ear. The Veteran specifically described an incident where he felt that his ears became badly plugged up and he began hearing buzzing after firing an M75 rifle. He maintained that the feeling persisted until sometime later, and that when firing a machinegun one day, he felt that his ear had cleared up. He reported that at that time, he placed his hand near his hear and notice pus and blood coming from the ear. He described being treated at a hospital, where the blood and pus was suctioned from his ear. He maintained that he again experienced a discharge of blood and pus from his hear at a later point when in his unit headquarters. The Veteran’s reports are corroborated by his STRs which reveal multiple instances of diagnoses of otitis media or otitis externa, and where he was noted at one point to have had discharge from his right ear for several days. Based on the foregoing, the Board finds that the evidence clearly indicates that the Veteran endured hazardous military noise exposure and that he suffered from ear problems during service. As for the matter of a medical nexus between current bilateral hearing loss and tinnitus, and the Veteran’s service (particularly, his conceded hazardous noise exposure), the Board notes that the evidence of record is in disagreement on this matter. Here, the early medical evidence of record notes complaints of tinnitus since at least September 1969, as documented in a VA ENT examination report. The report also noted that that the Veteran indicated that he could hear well at that time. Notably, however, the report does not clearly establish whether the Veteran perceived or had any hearing impairment at that time. An April 1970 report from the Veteran’s private physician additionally indicated that he treated the Veteran since 1966, and that he complained of symptoms of tinnitus and an earache. In addition to these reports and the Veteran’s multiple reports of noticing an onset of hearing loss and tinnitus after exposure to hazardous noise during training exercises in service, an October 1990 private audiological treatment report noted his complaint of having bilateral progressive hearing loss and tinnitus dating form his time in active service. A January 1997 note from a private ENT specialist indicated that the Veteran had developed hearing loss and tinnitus when exposed to high frequency noise during his Army training. The Board finds this evidence to be credible and concludes that the evidence, consisting of the Veteran’s lay statements and corroborating medical treatment reports, supports a finding that he has experienced a continuity of bilateral hearing loss and tinnitus symptomatology since his in-service hazardous noise exposure. In reaching this finding, the Board notes that the late Veteran, as a layperson, was competent to report on the onset and continuity of his hearing loss and tinnitus symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). In contrast to this evidence, the opinion provided by the December 2006 VA examiner relied on apparent normal hearing in the right ear from 1972 to 1997, and a history of occupational noise exposure in the industrial setting from 1971 to 1998, as opposed to the Veteran’s five to six months of hazardous military noise exposure. The examiner, however, did not address evidence of right ear hearing loss present since at least January 1981, and evidence of ear symptoms, including tinnitus present for many years prior to the Veteran’s occupational noise exposure beginning in 1971. See Hensley, 5 Vet. App. at 157. Nor did the examiner address the rather significant left ear hearing loss present during apparent evaluation in May 1972, not long after the commencement of the Veteran’s supposed period of occupational noise exposure in an industrial setting. Additionally, the March 2011 VA examiner’s negative etiology opinion inappropriately relied on an absence of medical evidence of hearing loss during the Veteran’s service and at his separation from service. Incidentally, the examiner also opined that tinnitus was secondary to the Veteran’s higher frequency hearing loss. The December 2014 VA examiner noted that the Veteran’s hearing loss was characteristic for progressive hearing loss such as that resulting from prolonged exposure during military service, but then the examiner opined that the Veteran’s hearing loss was less likely as not caused by noise exposure or acoustic trauma during service, apparently as a result of the largely incorrect supposition that the Veteran’s hearing loss did not have onset until 20 years after his separation from service. The examiner also incorrectly noted that the Veteran had an onset of tinnitus many years after his active service and did not address reports of tinnitus since at least 1966. Overall, the weight of the evidence supports a finding that the Veteran’s bilateral hearing loss and tinnitus began as a result of exposure to hazardous military noise during his active service. The Veteran was competent to report the onset of his symptoms after such noise exposure during service, and the medical evidence supports his contentions that he sustained an onset of hearing impairment and tinnitus during service. The Board finds there is insufficient reason to question the credibility of the Veteran’s reports regarding the onset and presentation of his symptoms. See Layno, 6 Vet. App. at 470. Thus, affording the appellant the benefit of the doubt on certain elements of these claims, the Board finds that the late Veteran experienced bilateral hearing loss and tinnitus symptoms since service. Accordingly, service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. REASONS FOR REMAND Service Connection – Otitis Media The Board is cognizant of the fact that the current appeal has been the subject of multiple remands. Notably, however, prior Board consideration of the claim for otitis media centered on whether new and material evidence had been received sufficient to reopen the claim. In light of this decision to reopen the claim, the Board has determined that specific development is still required to determine the likelihood that the Veteran suffered from a current ear disability, other than hearing loss and tinnitus, during the pendency of this appeal. The evidence of record establishes the Veteran’s exposure to hazardous military noise—as well as multiple findings of chronic otitis during service. The evidence further establishes that he experienced otitis in the years following his separation from service, that he was noted by an ear specialist in October 1990 to have experienced a feeling of fullness in his ears dating from the time of his active service, and that he was noted by his ENT specialist in January 1997 to have had a peripheral vestibular lesion in relation to his exposure to high frequency noise during service. Notably, however, the evidence does not clearly identify whether the late Veteran had a current ear disability (other than hearing loss and tinnitus) during the pendency of the current appeal. Further, while the examiner noted in the March 2011 VA examination report that the Veteran did not have an active ear disease, it is unclear whether the examiner considered the presence of residuals of peripheral vestibular lesion. Additionally, the examiner did not clearly identify whether the Veteran had previously experienced an ear disability during the pendency of the appeal that had subsequently resolved. Accordingly, remand is required to accord an examiner an opportunity to review the record and to provide opinions as to the likelihood that the late Veteran had an ear disease during the pendency of his appeal and as to the etiology of any such diagnosed ear disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). This matter is REMANDED for the following: Arrange to obtain new opinions from a VA examiner, preferable one with experience in evaluating ear diseases, as to the presence and etiology of any current ear disability for the late Veteran. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record, to include the extensive medical and lay evidence of record, the VA examiner should: (a.) clearly state whether the late Veteran at least as likely as not (i.e., a 50 percent or greater probability) had any ear disease, other than bilateral hearing loss and tinnitus—to include any otitis media and residuals of peripheral vestibular lesion—at any point concurrent with the current appeal (since November 1998, even if later asymptomatic or resolved). (b.) For each such identified ear disease, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such had its onset during the Veteran’s service, or was otherwise medically-related to the Veteran’s service, to include the multiple documented instances of chronic otitis and ear problems during his active service. In addressing the above, the examiner must consider and discuss all pertinent medical evidence (to include evidence of diagnosis of otitis media following service, the October 1990 hearing specialist report noting the Veteran’s report of feeling ear fullness since his active service, and the January 1997 report of his experiencing a vestibular ear lesion as a result of high frequency noise exposure during service) and lay evidence (to include the Veteran’s assertions as to the nature, onset, and continuity of ear symptoms since ear injury as a result of hazardous noise exposure during his active service) of record. The examiner is advised that the late Veteran was competent to report having experienced symptoms of ear problems since service. If lay assertions are discounted in any manner, the examiner should clearly so state, and explain why. No action is required of the appellant unless and until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). 38 C.F.R. § 3.655. The appellant is also advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.