Citation Nr: 21024567 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 06-18 262 DATE: April 23, 2021 ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a right ear hearing loss disability. Entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is granted. FINDINGS OF FACT 1. The April 2004 rating decision that denied entitlement to service connection for a right ear hearing loss disability was not appealed and is final. 2. Evidence submitted since the April 2004 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right ear hearing loss disability. 3. The Veteran’s right ear hearing loss disability was noted upon entry into service (and thus preexisted his entrance into active service), and the presumption of soundness does not apply. 4. The competent, credible evidence of record does not show a worsening of the Veteran’s preexisting right ear hearing loss disability during his active duty service. 5. The competent, credible evidence of record is at least in equipoise concerning whether the Veteran’s tinnitus had its onset in service or is otherwise etiologically related to his active duty service. 6. The competent, credible evidence of record is at least in equipoise concerning whether the Veteran’s acquired psychiatric disability had its onset in service or is otherwise etiologically related to his active duty service, to include as secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The April 2004 rating decision denying service connection for a right ear hearing loss disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a right ear hearing loss disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from July 1976 to August 1979. He also had additional service as member of the U.S. Marine Corps Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of July 2005 and June 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran timely appealed. As an initial matter, the Board observes that the Veteran’s specific claim of entitlement to service connection for PTSD has been recharacterized to include all acquired psychiatric disabilities, to include PTSD and depression. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran testified before a decision review officer (DRO) at a hearing in December 2008 concerning the petitions to reopen his claim of entitlement to service connection for right ear hearing loss and for entitlement to service connection for tinnitus. In December 2009, he testified regarding those issues and addressed his claim of entitlement to service connection for an acquired psychiatric disability. Copies of these hearing transcripts are of record. In October 2017, the Veteran was informed that the Veterans Law Judge who conducted the December 2009 Board hearing is no longer employed at the Board. The Board provided the Veteran an opportunity to appear at another hearing before a different VLJ. However, to date the Veteran has not requested another hearing. The Board issued a decision in January 2011 which declined to reopen the claim of entitlement to service connection for right ear hearing loss and denied the remaining two claims. The Veteran subsequently appealed to the U.S. Court of Appeals for Veterans Claims (“Court”). In July 2011, the Court vacated and remanded the issues on appeal for further consideration consistent with a Joint Motion for Remand filed by counsel for the Veteran and the VA Secretary. Thereafter, the Board remanded these issues in March 2012, January 2019, and, most recently, in November 2019. As the actions specified in the most recent remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). New and Material Evidence To reopen a claim following a final decision, new and material evidence must be received since the last final disallowance of the claim on any basis. 38 U.S.C. § 5108. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a right ear hearing loss disability. The Veteran was initially denied entitlement to service connection for hearing loss in February 1990. His petition to reopen his claim was denied in a rating decision dated April 2004. This petition was denied because the Veteran failed to report for a VA audiological examination and no new evidence was presented that showed that the Veteran’s preexisting right ear hearing loss was aggravated by his military service. The Veteran applied to have his claim reopened in a correspondence received in March 2005. The relevant evidence of record at the time of the April 2004 rating decision consisted of the Veteran’s service treatment records through the end of his period of active duty service ending in August 1979, and VA treatment records dated through 1994. The Veteran’s service treatment records show that the Veteran had an increased threshold at 4000 Hertz in his right ear at enlistment. The aforementioned VA treatments include audiograms from January 1990 and March 1992, that also showed right ear hearing loss. The evidence received since the April 2004 rating decision includes VA treatment records through the present, a VA audiological examination and medical opinion dated November 2007, and the Veteran’s lay statements, including his testimony at his December 2008 and December 2009 hearings. This evidence, specifically the November 2007 medical opinion, pertains to the element of nexus: whether the Veteran’s demonstrated preexisting right ear hearing loss disability was aggravated in service to result in his current right ear hearing loss disability, an unestablished fact necessary to substantiate the service connection claim. Accordingly, the claim of entitlement to service connection for a right ear hearing loss disability is reopened. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157. In addition, certain diseases, such as sensorineural hearing loss, tinnitus, and psychoses, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for a right ear hearing loss disability is denied. The Veteran maintains entitlement to service connection for right ear hearing loss. He maintains that his right ear hearing loss disability developed during his active duty military service due to exposure to hazardous noise. The Veteran’s August 1975 enlistment examination report revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 15 --- 40 LEFT 15 10 10 --- 10 An audiogram in January 1977 showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 15 --- 40 LEFT 15 10 10 --- 10 The Veteran’s June 1979 separation examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 40 40 LEFT 10 15 15 15 5 Initially, the Board notes that on enlistment the Veteran was assessed with right ear hearing loss. Regarding this right ear hearing loss, the Federal Circuit has distinguished between those cases in which the pre-existing condition is noted upon entry into service, and cases in which the pre-existence of the condition must otherwise be established. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In a case where there is no pre-existing condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that: (a) the condition pre-existed service and (b) the pre-existing condition was not aggravated by service. Wagner, 370 F.3d at 1345. “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that such increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable (obvious, manifest, and undebatable) evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b). History of pre-service existence of a disease does not constitute a notation of such condition. Crowe v. Brown, 7 Vet. App. 238, 240 (1994). Here, as the Veteran’s right ear hearing loss was noted upon entry, the presumption of soundness does not apply. As such, the Veteran can only bring a claim for aggravation of the preexisting condition, and he carries the burden of showing that the pre-existing condition was aggravated (e.g., worsened) during service and of presenting evidence of symptomatic manifestations of the condition in service. If the presumption of aggravation arises, the burden would then shift to VA to rebut a finding that service aggravated the condition beyond the natural progression of the disability. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran underwent a VA examination in November 2007. There, the Veteran complained of difficulty hearing and understanding speech. He reported that during service he was exposed to grenades, grenade launchers, tanks, and rifle fire. He stated that he had several civilian jobs since that time, including floor care, general labor, and factory work. The Veteran reported the use of hearing protection while working in the factory. He also denied a history of recreational hazardous noise exposure and denied a history of ear infections, ear surgery, dizziness, head trauma, or a familial history of hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 70 60 60 60 LEFT 20 20 20 20 25 Speech audiometry revealed speech recognition ability of 32 percent in the right ear and of 100 percent in the left ear. Immittance test results were within normal limits, consistent with normal middle ear function. The Veteran was ultimately diagnosed with sensorineural hearing loss of the right ear and the VA examiner was asked to opine whether the increase in hearing loss of the right ear was due to or the result of acoustic trauma or due to the natural progression of the disease. In addition to providing the aforementioned clinical evaluation of the Veteran, the examiner also endorsed a review of the Veteran’s service treatment records and VA treatment records prior to providing an opinion. She found that the Veteran’s increase in hearing loss in the right ear as documented on the examination report was less likely as not caused by or the result of acoustic trauma, nor was it due to the natural progression of the disease. She reasoned that the hearing loss in the right ear was only present at 3000-4000 Hertz. While the etiology of that preexisting right ear hearing loss was unknown, the hearing in the Veteran’s right ear remained stable during his active duty military service. Regarding the right ear hearing loss and based on the evidence of record, the Board finds that service connection on a direct or aggravated basis is not warranted. Here, the evidence shows that the Veteran’s right ear hearing loss existed prior to service, and there are no indications of a worsening of the right ear hearing loss in service although notations acknowledging the condition are present. There is no objective evidence of a worsening of the Veteran’s preexisting right hearing loss condition necessary to establish service connection by aggravation in the record. Moreover, the November 2007 VA examiner (after a physical examination and review of the medical evidence of record) concluded that the Veteran’s right ear hearing loss was not aggravated during active service and cited to evidence in the claims file as support for this conclusion. The Board finds that November 2007 VA examination probative to determine right ear hearing loss was not aggravated by active service. The Veteran is competent to describe things that are capable of lay knowledge or observation, such as the symptomology of hearing loss. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in this instance, determining whether hearing loss was aggravated by active service is medically complex in nature and not subject to be diagnosed or identified by a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran’s statements regarding etiology are not competent. Even if they were competent, they are outweighed by the medical opinion obtained from a medical professional who found that the Veteran’s preexisting right ear hearing loss was not aggravated or caused by active service. Accordingly, after reviewing all the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for a right ear hearing loss disability. 3. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus. He maintains that his bilateral tinnitus had its onset during his active duty military service due to exposure to hazardous noise. The Board finds that the preponderance of the evidence weighs in favor of a grant of service connection for bilateral tinnitus. First, the Board finds that there is competent, credible evidence of a current disability. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is “subjective,” as its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. As the Veteran has competently, credibly, and consistently reported experiencing tinnitus, the first element of service connection is met. Second, the Board finds that there is competent, credible evidence of an in-service event, disease, or injury. The Veteran has reported in-service noise exposure. The Veteran’s military personnel records show that he was an Infantryman during his active duty service. Accordingly, the Board finds that his reports regarding in-service noise exposure and tinnitus are consistent with the circumstances of his service. 38 U.S.C. § 1154 (a); see Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Thus, the second element of service connection is met. At issue is whether there is an etiological relationship between the Veteran’s tinnitus and his in-service noise exposure. At the Veteran’s November 2007 VA examination, the examiner endorsed a review of the claims file and performed a clinical evaluation of the Veteran. The examiner found that the Veteran’s tinnitus was less likely as not due to in-service acoustic trauma. She reasoned that tinnitus was not reported in the Veteran’s service treatment records, there was no significant change in hearing during service, and no report of tinnitus during that time. Thus, she concluded that it was less likely as not that the current reported tinnitus was due to acoustic trauma. As the medical opinion is predicated upon the absence of documentation of tinnitus in the Veteran’s service treatment records, it is inadequate. Dalton v. Peake, 21 Vet. App. 23 (2007). The Board further notes that the lack of any evidence showing that the Veteran exhibited a hearing change in service is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss or tinnitus to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Where there is no evidence of a hearing disability or tinnitus until many years after service, “[i]f evidence should sufficiently demonstrate a medical relationship between the appellant’s in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service.” Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that at the current juncture, there is no probative medical opinion addressing the etiology of the Veteran’s tinnitus. The Board could remand for a medical opinion. However, remand could be interpreted as a violation of 38 C.F.R. § 3.304 (c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”) and Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). The Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s tinnitus is related to service. The Veteran’s lay testimony is of particular importance for this claim, as the determination of whether service connection is warranted for tinnitus turns almost entirely on his lay testimony. In particular, the Board finds the Veteran competent to report ringing in his ears. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Given the Veteran’s credible lay statements concerning the presence of tinnitus, the circumstances of his in-service noise exposure, the lack of intervening exposure (the use of hearing protection during factory work and no recreational exposure), the evidence is at least in relative equipoise on this matter. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 4. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is granted. The Veteran seeks entitlement to service connection for an acquired psychiatric disability. He maintains that he developed a psychiatric condition as a result of in-service stressors, namely his involvement in an incident in which his knee was hit by a grenade fragment. Alternatively, he avers that his disability is caused or aggravated by his service-connected back disability and accompanying radiculopathy. The Board finds that the preponderance of the evidence weighs in favor of a grant of service connection for an acquired psychiatric disability on a secondary basis. First, the Board finds that there is competent, credible evidence of a current disability. He has been variously diagnosed with psychiatric disabilities, to include depressive disorder, not otherwise specified (NOS), depression with psychosis, polysubstance dependence, dementia secondary to prolonged polysubstance use, dissociative amnesia, and personality disorder, NOS. Additionally, the record demonstrates that he is service-connected for a back disability and associated radiculopathy. At issue is whether there is an etiological relationship between the Veteran’s variously diagnosed acquired psychiatric disabilities and his service-connected back disability and radiculopathy. There are two medical opinions of record that address this specific question. The first is a private medical opinion provided in November 2013. The private examiner endorsed a review of the claims file and provided an interview and clinical evaluation of the Veteran before determining that his service-connected degenerative joint disease of the lumbar spine and sacroiliac joints and radiculopathy of the bilateral lower extremities caused the Veteran’s depression. She referenced medical literature which details the connection between medical issues, specifically pain akin to that which the Veteran experienced, with psychiatric disorders similar to his complaints. The second is a VA opinion provided in July 2019. The VA examiner also endorsed a review of the claims file and provided an interview and clinical evaluation of the Veteran before determining that the claimed acquired psychiatric disability was less likely than not proximately due to or the result of a service-connected lumbar spine disability with associated radiculopathy of a right knee disability. The examiner determined that most of the Veteran’s psychiatric issues were explained by stand-alone chronic substance use. The Board has considered in detail the aforementioned medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other, as both were based on a review of the record, clinical evaluation and interview of the Veteran, and contain adequate reasoning and rationale. The opinions are in relative equipoise. See Gilbert v. Lewinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” to prevail.). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran’s current acquired psychiatric disabilities and his service-connected back disability and radiculopathy. As all elements of service connection have been satisfied, service connection for an acquired psychiatric disability on a secondary basis is granted. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (d), 3.310. As the Board is granting service on a secondary service connection theory of entitlement, it is not necessary to further address the claim seeking service connection for an acquired psychiatric disability on a direct basis. The nature and extent of this disorder is not before the Board at this time. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.