Citation Nr: 21024583 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-34 945 DATE: April 23, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for bilateral hearing loss, is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In a December 1996 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral hearing loss. 2. The Veteran was notified of the December 1996 rating decision and his procedural and appellate right in a December 5, 1996, letter. 3. VA did not receive a notice of disagreement or additional evidence within one year of December 5, 1996. 4. Evidence added to the record since the final December 1996 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral hearing loss. 5. The Veteran’s bilateral hearing loss is related to in-service noise exposure. 6. The Veteran’s tinnitus is related to in-service noise exposure. CONCLUSIONS OF LAW 1. The December 1996 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (c) (1996) [2018]; 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103 (1996) [2020]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1968 to September 1970. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a Board videoconference hearing in April 2020, and a copy of the hearing transcript has been obtained and associated with the record. 1. New and material evidence having been received, the application to reopen the claim for service connection for bilateral hearing loss, is granted. In a December 1996 rating decision, the RO denied service connection for bilateral hearing loss. The Veteran was notified of the December 1996 rating decision and his procedural and appellate rights in December 1996 at his address of record. He did not file a notice of disagreement within one year of notice of the December 1996 rating decision. No additional evidence was received within one year of notice of the December 1996 rating decision. For this reason, the December 1996 rating decision denial of service connection for bilateral hearing loss became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. Evidence received since the prior December 1996 rating decision includes multiple lay statements from the Veteran, his wife, brother, and childhood friend, VA audiology reports and opinions referable to the Veteran’s bilateral hearing loss. Such evidence includes clinical findings, as well as nexus opinions regarding the etiology of the Veteran’s hearing loss. Thus, as service connection was previously denied on the basis that there was no evidence that the claimed condition began or was caused by his service, and the newly received evidence addresses an unestablished factor of service connection, the Board finds that the evidence received since the December 1996 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for bilateral hearing loss. Accordingly, the Board concludes that the criteria for reopening service connection are met. 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. 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, 1167 (Fed. Cir. 2004). Sensorineural hearing loss and tinnitus will be presumed related to service, absent an intercurrent cause, if a) they were shown as chronic in service; or, b) if they manifested to a compensable degree within a presumptive period following separation from service; or, c) 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, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. See 38 U.S.C. § 1154(a). Lay 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss. He claims his job as a cannon crewmember during service and operating large artillery caused him to lose his hearing. The Veteran’s disability is also one for which presumptions of service connection are available. For the reasons that follow, the Board finds that the Veteran’s bilateral hearing loss is related to service. The Board concludes that service connection is warranted. I. Presumptive Service Connection The Veteran seeks entitlement to service connection for bilateral hearing loss. Sensorineural hearing loss is among the “chronic diseases” for which presumptive service connection is available. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. a. Hearing Loss Shown as “Chronic” In Service The Board finds first that the Veteran’s bilateral hearing loss was not chronic in service. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observations to establish chronicity at the time. See 38 C.F.R. § 3.303(b). Upon entering the service, the Veteran underwent an entrance examination where his hearing was tested. It was reported his hearing was within normal limits. His service treatment records (STRs) are silent for complaints of hearing problems. During his exit examination, the Veteran’s hearing was tested again, and while the pure tone thresholds had a slight shift, the examiner determined his hearing was still within normal limits. With regard to an in-service incurrence of bilateral hearing loss, the Veteran is a combat veteran and has described an acoustic trauma sustained in combat. As such, the provisions of 38 U.S.C. § 1154(b) are applicable. The presumption found in § 1154(b) applies not only to the incurrence of an injury as the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). As to claims made by combat veterans, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. The combat presumption may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The combat presumption must be applied to two questions: (1) whether the claimed in-service injurious event occurred and (2) whether the claimed disability itself occurred while in service. Reeves, 682 F.3d at 999. In other words, the combat presumption relieves the veteran of having to establish that the injurious event suffered while in service led to disability following service, thereby permitting the veteran to have to show only that the injury or disease incurred in service was a chronic condition that persisted in the years following service. Id. The evidence shows the Veteran currently has a diagnosis of bilateral hearing loss. Further, the Veteran’s reports of diminished hearing an injury in service during combat are consistent with the circumstances of his service. As noted above, the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. Reeves, supra. Thus, the Board finds that the Veteran’s in-service acoustic trauma and diminished hearing is presumed to have occurred in service pursuant to 38 U.S.C. § 1154(b) and Reeves. However, the Board does not find that the bilateral hearing loss disability itself was present in service. The combat presumption does not automatically require that the report of an injury in combat means the Board must find an in-service disability was also present. See, e.g., Becker v. Wilkie, No. 18-0937 (U.S. Vet. App. Feb. 27, 2019) (memorandum decision). Chronic diseases must be diagnosed via a combination of manifestations sufficient to identify the disease entity. Hearing loss may be due to multiple causes. The Veteran does not indicate that he was told by a medical professional that he had a sensorineural hearing loss disability in service. A lay person, such as the Veteran, cannot diagnose himself with sensorineural hearing loss and the conditions and circumstances of his service, to include combat. There is no medical evidence of the in-service presence of sensorineural hearing loss. The Board finds the Veteran has not proffered “satisfactory lay or other evidence” that his hearing loss was present during service. The Board concludes that the combat presumption does not attach to the presence of the disability during service. See Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996). For a showing of chronic disease in service, a reliable diagnosis must be made in service. Walker, 708 F.3d at 1335. As the record shows no more than a slight shift in pure tone thresholds that were still within normal limits, the Board finds the preponderance of the evidence is against chronicity in service. b. Manifestations to a Compensable Degree after Separation from Service The Board also finds that the Veteran’s bilateral hearing loss was not manifest to a compensable degree after separation from service. The medical records state he was diagnosed with bilateral hearing loss in November 1996, over twenty-five years after service. The Veteran stated his hearing loss began in service and during his exit examination he was told he should have more testing, but he chose not to and said he would follow up with the VA. However, there are no records that the Veteran was evaluated for hearing loss until his November 1996 VA examination. An October 1996 statement indicates that the Veteran’s hearing deteriorated after service such that the results of the November 1996 examination are not indicative of his level of hearing loss at separation. Even so, the November 1996 audiometric scores showed a disability, but not a compensable one. See 38 C.F.R. §§ 3.385, 4.85, 4.86 (2020). The Veteran had puretone threshold averages of 37 in the right and 38 in the left ear, and 92 percent word recognition scores bilaterally. Accordingly, the Board finds that the evidence does not establish that the Veteran had compensable manifestations of hearing loss within one year of separation. The Board concludes that the criteria for presumptive service connection are not warranted on this basis. c. Continuity of Symptomatology Finally, the evidence of record indicates the Veteran did not have continuity of symptomatology for bilateral hearing loss. As noted above, the Veteran reported having trouble hearing since service, however, competent evidence demonstrating a relationship between any present disability and the continuity of symptomatology is required, whether lay or medical evidence. Savage v. Gober, 10 Vet. App. 488, 494 (1997), overruled on other grounds by Walker, 708 F.3d at 1355. The Veteran was not diagnosed with bilateral hearing loss prior to separation nor during the year following service. He suggests that his MOS as a cannon crewmember and subsequent noise exposure are what led to his diagnosis of bilateral hearing loss. He provided statements from family and friends indicating he suffered hearing problems since service, but while they are competent to relay what they saw, they are not competent to link any hearing loss they noticed in the Veteran to a specific event or injury during service. Moreover, hearing may diminish without being a disability. See 38 C.F.R. § 3.385 (2020). The record does not reflect any means by which a lay observer would be able to know that the Veteran’s diminished hearing reflected the presence of a disorder or disability. The Board finds that the hearing loss was not noted in service with attributable continuity of symptomatology. The Board concludes service connection is not warranted on this basis. 38 C.F.R. § 3.303(b). The Board turns to consider direct service connection. II. Direct Service Connection As noted, the current disability, bilateral hearing loss, and in-service noise exposure, have been established. The remaining issue is whether the current disability maybe related to those in-service injuries. Shedden, 381 F.3d at 1166-67. The Veteran testified to extensive noise exposure during service while operating large artillery. He indicated that he did not always have ear protection, but when he did use hearing protection devices, there were times when the blasts from the guns being fired would knock the protection out of his ears. The Veteran then testified that during his exit exam, the doctors wanted to hold him over for 10 days past his separation date for more testing. He said he declined being held over and would seek out treatment at the VA. He also said that after service, in his civilian jobs, he had no noise exposure. The Veteran underwent a VA audiological examination in November 1996. The examiner determined the Veteran had hearing sensitivity within normal limits from 250-2000 Hz dropping to moderately severe to severe sensorineural hearing loss from 3000-8000 Hz, with an excellent word recognition ability at an amplified speech level. The examiner also indicated the Veteran was positive for occasional tinnitus. However, the examiner did not opine as to the etiology or cause of his hearing loss. The Veteran’s next auditory consult was in May 2011, where he reported noticing a hearing decrease since his discharge from service in 1970. The notes show the examiner noted the Veteran experienced in-service noise exposure as well as post-service occupational noise exposure. The exam showed the Veteran suffered from mild sensorineural hearing loss through 1000Hz sloping to a moderate to profound sensorineural hearing loss with fair speech recognition. However, the examiner did not opine as to the etiology and cause of his hearing loss. The Veteran underwent another VA audiology exam in December 2012. The examiner opined the Veteran’s hearing loss was not at least as likely as not caused by or a result of his military service. The examiner explained that the Veteran had normal hearing 500-4000Hz bilaterally on his separation examination in September 1970. She noted the Veteran had noise exposure in service as an artillery crewmember, but that he also had noise exposure after service. The Veteran reported he worked at UPS for 35 years, and was around “warehouse noise and a few conveyors,” where he reported not using hearing protection. He also indicated he had recreational noise exposure from his hobby of working on cars. After the December 2012 VA examination, an addendum opinion was requested to discuss the Veteran’s noise exposure in service and its effect on the Veteran’ hearing loss and tinnitus. In February 2013, the addendum opinion was added to the file. The examiner determined that although the Veteran had a high probability of noise exposure in service, his separation examination revealed normal hearing bilaterally. She continued by relying on the Institute of Medicine Report on noise exposure in the military, based on current knowledge, noise induced hearing loss (NIHL) occurs immediately, meaning there is nothing to support delayed onset of NIHL. She concluded that the Veteran’s hearing loss is less likely than not related to military noise exposure, and that there is no objective evidence of military noise injury. The Veteran had a private audiologic evaluation in February 2020. The audiologist performed a hearing exam and determined the Veteran suffered from bilateral mild to profound sensorineural hearing loss and tinnitus. The Veteran reported his noise exposure in service, his current difficulties hearing, and that he currently works in an HVAC shop without the use of hearing protection. The doctor said she reviewed the Veteran’s enlistment and separation exams and his DD214. She then opined that the Veteran had a significant permanent shift in hearing threshold beyond test variability from entrance to separation, indicative of possible auditory damages from conceded noise on active duty and further stated that the threshold shift and hazardous noise exposure provide a nexus to relate current hearing loss to military noise exposure. The Veteran also provided buddy statements from his wife, brother, and childhood friend. The Board has considered all the Veteran’s statements and the buddy statements provided. The buddy statements all indicated the Veteran returned from service having problems with his hearing. His wife said that after he was discharged, she noticed he would ask to have things repeated, listened to the radio and television at higher volumes, and had problems hearing people speak in groups. She said he was not like that prior to his military service. His friend said the Veteran complained of severe ringing in both ears, and his brother said that there was a definite decline after his service in Vietnam. While the Board is required to consider all pertinent medical and lay evidence in evaluating a claim, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Here, while the Veteran is competent to relay symptoms observable to a layperson, such as decreased hearing acuity, and describe noise exposure from service, the Board need not find a Veteran or a Veteran’s buddy statements competent to render opinions regarding the etiology of a medical condition (such as sensorineural hearing loss) that requires specialized medical knowledge (and equipment) to diagnose. King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The Veteran, his wife, his brother, and childhood friend have not shown that they possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation of the Veteran’s bilateral hearing loss. Accordingly, this lay evidence does not constitute competent evidence and lacks probative value. When considering more than one medical opinion, the Board may weigh each opinion differently, and favor one opinion over another. D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). The probative weight of medical opinion evidence is based on, among other things, the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board finds both the VA and the private audiology nexus opinions to be adequate as they both provide a rationale and bases for the opinions offered. Having reviewed all the opinions, the Board finds that the opinions offer rationales based in the record without inaccurate factual predicates. The Board finds them to be of equivalent probative value. Resolving doubt in favor of the Veteran, the Board finds that his bilateral hearing loss is related to service. See 38 U.S.C. § 5107(b). The elements of service connection have been met. Therefore, the claim must be granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). 3. Entitlement to service connection for tinnitus The Veteran also seeks service connection for tinnitus due to his hazardous noise exposure in service. He claims he has experienced bilateral tinnitus since 1969, and that it gradually began in service, but he noticed it more after returning home. The Veteran’s disability is also one for which presumptions of service connection are available. For the reasons that follow, the Board finds that the presumptions are met, and the Veteran’s tinnitus is unrelated to service. The Board concludes that service connection is warranted for tinnitus. The Veteran claims entitlement to service connection for tinnitus. Tinnitus is among the “chronic diseases” for which presumptive service connection is available. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board finds first that the Veteran’s bilateral hearing loss was chronic in service. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observations to establish chronicity at the time. See 38 C.F.R. § 3.303(b). Upon entering the service, the Veteran underwent an entrance examination where his hearing was tested. It was reported his hearing was within normal limits and there was no mention of tinnitus. His service treatment records (STRs) are silent for complaints of tinnitus. During his exit examination, the Veteran’s hearing was tested again, and the examiner did not report any hearing problems or tinnitus. As discussed above, the Veteran is a combat veteran and has described an acoustic trauma sustained in combat. The Veteran is competent to report that he has tinnitus. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). In light of the combat presumption regarding the existence of the disability and the purpose of the presumption to overcome the absence of written documentation, the Board finds the Veteran’s tinnitus was chronic while in service. See Reeves, 682 F.3d at 999. The Veteran has been continuously diagnosed with tinnitus since 2011. See February 2013 VA examination report; June 2016 VA examination report; March 2020 private medical opinion. As a result, the presumption may only be rebutted by evidence relating the current disability to an intercurrent cause. The VA examination reports do not relate the disability to an intercurrent cause. Accordingly, the Board concludes the presumption is not rebutted and the Veteran’s tinnitus must be presumed related to service. Therefore, the claim must be granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.