Citation Nr: 21022711 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-57 230 DATE: April 19, 2021 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for residuals of dental surgery on the left canine is remanded. FINDING OF FACT 1. In December 1992, the VA denied entitlement to service connection for bilateral hearing loss. Appellate rights were provided but the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 2. New evidence since the December 1992 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating a claim of entitlement to service connection for bilateral hearing loss. 3. The preponderance of the evidence is against finding that tinnitus is related to an in-service injury or disease, was compensably disabling within a year of separation from active duty, or that symptoms have been continuous since service. CONCLUSION OF LAW 1. The December 1992 rating decision that denied entitlement to service connection for bilateral hearing loss is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to December 1967. This claim is before the Board of Veterans’ Appeals (Board) from October 2015 and January 2016 rating decisions by the Department of Veteran’s Affairs (VA) Regional Office. The October 2015 rating decision reopened the Veteran’s claim for entitlement to service connection for bilateral hearing loss; however, service connection for bilateral hearing loss and tinnitus were denied. The January 2016 rating decision denied entitlement to service connection for residuals of dental surgery for the left canine. The Veteran timely appealed both rating decisions and requested a Board hearing by live videoconference. However, the scheduled hearing was canceled by the Veteran and his representative submitted a brief instead requesting “a decision be made based on the evidence of record.” See September 2020 Appellate Brief (received 9/28/2020, pp. 3). As a result, the Board will proceed with an adjudication on the merits. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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 determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. 1. New and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss In a December 1992 rating decision, VA denied entitlement to service connection for bilateral hearing loss based on a finding that the record did not show that the Veteran’s current hearing loss was related to service. The Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. This decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In July 2015, the Veteran requested to reopen his claim. New evidence added to the record since the final December 1992 rating decision includes the Veteran’s July 2015 statement in support of his claim, an October 2015 VA examination, August 2017 decision review officer (DRO) hearing testimony, and October 2017 statements from the Veteran’s wife and the Veteran’s sister. The Veteran underwent a VA examination in October 2015. The examiner diagnosed the Veteran with sensorineural hearing loss in both the left and right ears. Additionally, during the August 2017 DRO hearing, the Veteran asserted again that his hearing loss was due to a delayed onset of noise exposure he experienced in service. His wife also offered testimony that described a change in the Veteran’s hearing from before and after his active duty service. The Veteran’s sister further offered a statement asserting that the Veteran did not have any hearing issues prior to service but that she noticed his hearing had worsened upon his return home. These new assertions are material in that they related to an unestablished fact and raise a reasonable possibility of substantiating the service connection claim. The Board thus reopens the Veteran’s claim of entitlement to service connection for bilateral hearing loss for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, such as tinnitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 2. Entitlement to service connection for tinnitus. The Veteran contends his tinnitus is due to noise exposure experienced while on active duty. The Veteran was diagnosed with tinnitus during the October 2015 VA examination. As a result, the first element of service connection has been met. The next element of service connection requires an in-service incurrence of a disease or injury. Here, the Veteran asserts that while on active duty in Germany, he was assigned to a Mobile Army Surgical Hospital (MASH) unit. His duties included aiding helicopters landing and unloading them while the blades of the aircraft were still running. See August 2017 DRO hearing testimony. Additionally, during the August 2017 hearing, the Veteran stated his MASH unit was set up near a “tank outfit.” He then recounted one instance where the tank guns fired near their tent so loudly it felt as though “somebody walked up and hit [him] in the stomach and knocked the wind out of me.” He also testified that he was not given ear protection while in service. Additionally, the Veteran’s military occupational specialty (MOS) as a carpenter, building and deconstructing MASH units, provides a likely possibility of hazardous noise exposure. As the Veteran’s assertions are supported by his military record, the second element of service connection has been met. The question remaining for consideration is whether there is a nexus, or link, between the Veteran’s current tinnitus and his in-service noise exposure. The Veteran’s service treatment records are silent for complaints and symptoms of tinnitus. The Veteran’s January 1966 enlistment examination does not indicate any issues regarding the Veteran’s ears generally nor his ear drums. The Veteran’s October 1967 separation examination also shows the Veteran did not have any issues regarding his ears generally nor his ear drums. No complaint or treatment for tinnitus was found in service. The Veteran’s first complaint of “head noises” was during a February 1978 “hearing conversion program” examination. This examination was required by his place of employment, the Virginia House Furniture Corporation. However, the examination did not specifically outline the current symptoms the Veteran was experiencing or explore their onset. The Veteran’s record is silent as to any additional complaints of tinnitus until his July 2015 claim for service connection, nearly 48 years after service and 37 years after his first assertion in 1978. The Veteran asserted in his July 2015 statement that his tinnitus is a result of in-service noise exposure without the benefit of hearing protection. However, he does not indicate when the tinnitus began but states it has progressively gotten worse since his separation from service. In October 2015, the Veteran underwent a VA examination in which the examiner indicated that there was no relation between the in-service noise exposure and his current tinnitus. The examiner stated that due to a lack of shift in the Veteran’s hearing while in service or at separation, trauma to the ears that would produce tinnitus could not be established. Additionally, the Veteran reported working in a furniture lumber yard and being an avid hunter after his active duty service. As a result, the examiner stated it was less likely than not that the Veteran’s tinnitus was a result of his exposure to hazardous noise while in service. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran is competent to describe observable symptoms such as ringing in the ears. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran is competent therefore to diagnosis tinnitus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, he has not clearly stated that he observed tinnitus symptoms starting during or within one year of service and continuing to the present. The Veteran’s uncertainty as to the onset of his tinnitus, paired with the fact that tinnitus was not reported to medical providers until 1978, nearly 11 years after service, leads the Board to conclude it is not sufficiently certain to establish tinnitus as chronic in service, manifested to a compensable degree within one year following separation from service, or with continuity of symptomatology since service. Thus, service connection is warranted on these theories. See 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The Board now turns to the question of whether tinnitus is directly related to active duty noise exposure. While the Veteran has stated that he believes his tinnitus is related to in-service noise exposure, the Veteran is not competent to provide an opinion in this regard. The etiology of tinnitus is medically complex as it has multiple possible etiologies. Jandreau, 492 F.3d at 1377, 1377 n.4. As the Veteran does not have the medical training, expertise, or experience to provide a competent medical nexus opinion on this question, his opinion is not probative on this question. The only competent nexus evidence of record is the October 2015 VA examiner’s opinion, which the Board has found probative. Thus, the only probative nexus evidence weighs against the claim, and it must be denied. In arriving at this decision, the Board considered the doctrine of reasonable doubt. That doctrine is only invoked, however, where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for tinnitus. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The claim is denied. REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that his bilateral hearing loss is a result of noise exposure during his active duty service. He specifically contends that his hearing loss had a delayed onset and has progressed since leaving service. See July 2017 statement in support of claim (received 7/16/2015). The Veteran was given a VA examination in October 2015. The examiner concluded that there was no connection between the Veteran’s current hearing loss and his active duty service. Specifically, the examiner stated that the Veteran had normal hearing at entry and separation from service. This information, paired with his post service employment in a furniture lumber yard and his post service hunting hobby, led the examiner to find no connection between the Veteran’s hearing loss and service. However, the Veteran specifically asserted that he believed his hearing loss to be delayed. Additionally, the Veteran asserted that his hearing has been declining since service and submitted a 1978 audiogram that shows hearing loss for VA purposes which the examiner also did not consider. As the examiner ignored the Veteran’s lay assertions of hearing loss and did not consider the 1978 audiogram, the Board deems the nexus opinion provided by the October 2015 examiner inadequate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran also asserted in his August 2017 DRO hearing that he does not believe the hearing examination during his October 1967 separation examination is accurate. The Veteran stated he did not recall having a hearing test taken at that time and further questioned its validity as the examiner recorded all zeros in each range. Additionally, in October 2017, the Veteran’s wife and sister submitted a statement regarding the change in the Veteran’s hearing prior to service and after. Finally, in September 2020, the Veteran submitted a scholarly article regarding the impact of noise on hearing in the military that has not yet been considered by a medical professional. See correspondence (received 9/28/2020). The Board cannot make a fully informed decision on the issue of bilateral hearing loss because no VA examiner has considered all of this evidence and opined on whether the Veteran’s in-service noise exposure caused a delayed onset of his current hearing loss. On remand, an addendum opinion considering the Veteran’s lay assertions is needed. 4. Entitlement to service connection for residuals of dental surgery on left canine is remanded. The Veteran asserts that his left canine requires extraction due to the previous surgery he underwent on his left canine while in service. The Veteran’s service treatment records show a procedure to his left canine in August 1967 and noted he had pain on palpitation of the tooth prior to the surgery. During an August 2017 DRO hearing, the Veteran identified relevant outstanding private dental treatment records. A remand is required to allow VA to obtain authorization and request these records. Specifically, the Veteran asserted that during a routine check-up with his privately located dentist, the doctor determined he needed an additional surgery on his left canine. The Veteran was then referred to an oral surgeon for further action. However, the Veteran’s current dental records are not of record nor have any requests been made for these documents. In order to establish the current state of the Veteran’s left canine, those records need to be associated with the file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral hearing loss is at least as likely as not related to his in-service noise exposure to include a delayed onset of hearing loss symptoms. The examiner must review the entire claims file. The examiner should address the 1978 audiogram, the Veteran’s lay statements to include his assertion of a delayed onset and the scholarly article the Veteran submitted regarding military noise exposure. The examiner should also consider the letters from the Veteran’s wife and sister regarding his change in hearing. Finally, the examiner should also consider the Veteran’s in-service audiograms. If there is any indication any test was not actually provided, the examiner should provide a reason as to why. 2. Ask the Veteran to complete a VA Form 21-4142 for all relevant dental records dated close to or since November 2015. Make two requests for the authorized records or make a formal finding that a second request for such records would be futile. All development efforts should be associated with the claims file. The Veteran should be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Conti, Associate 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.