Citation Nr: 21027209 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-33 014 DATE: May 5, 2021 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for left ear hearing loss has been received, the application to reopen is granted. Service connection for left ear hearing loss is denied. REMANDED Service connection for a disability manifested by vertigo, to include as secondary to service-connected right ear hearing loss, is remanded. FINDINGS OF FACT 1. In an August 2005 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) declined to reopen a claim for service connection for left ear hearing loss. There was no new and material evidence pertinent to the claim received within one year of the issuance of the decision. The Veteran was notified of the decision and apprised of his appellate rights but did not appeal. 2. The evidence pertaining to left ear hearing loss received after the August 2005 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's left ear hearing loss is not attributable to service and was not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The August 2005 rating decision declining to reopen the claim for service connection for left ear hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.1103. 2. Evidence received since the August 2005 rating decision is new and material, and the claim for service connection for left ear hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1958 to June 1962 in the United States Air Force. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2014 and April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board declined to open the claim for service connection for left ear hearing loss, and denied service connection for vertigo. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Memorandum Decision, the Court vacated the February 2019 Board decision on both claims, and remanded the matters to the Board. 1. As new and material evidence sufficient to reopen the previously denied claim for service connection for left ear hearing loss has been received, the application to reopen is granted. VA provides disability compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury 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). Additionally, for certain chronic diseases, including sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a rating decision of May 2002, the RO denied service connection for left ear hearing loss. The evidence consisted of statements from the Veteran, his service treatment records (STRs), and VA treatment records. The RO denied the claim due to a lack of evidence showing that the Veteran had been exposed to acoustic trauma in service or that left ear hearing loss was otherwise incurred in service. In a rating decision of August 2005, the RO declined to open the claim for service connection. The evidence consisted of statements from the Veteran, his STRs, and VA treatment records. The RO continued the previous denial of the claim. There was no material evidence received within one year of the issuance of the August 2005 rating decision. The Veteran was notified of the decision and of his appellate rights but did not appeal. The August 2005 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. On VA examination in July 2014, a VA examiner found that the Veteran had been exposed to acoustic trauma during military service. She linked right ear hearing loss to service based on threshold shifts documented in the STRs, and further linked tinnitus to the right ear hearing loss. In the August 2014 rating decision on appeal, the RO acknowledged that the Veteran's military occupational specialty involved exposure to acoustic trauma. In February 2019, the Board denied reopening the claim. In the September 2020 Memorandum Decision, the Court found it unclear why the finding of military noise exposure did not constitute new and material evidence, and remanded the matter to the Board to provide an adequate statement of reasons and bases in this regard. The Board finds the July 2014 VA examiner's finding of in-service acoustic trauma is "new" evidence in that it was not before the RO in August 2005, and is not duplicative or cumulative of evidence previously of record. This evidence is also "material" as it lends support to an element of the Veteran's claim for service connection, that of an injury in service. When viewed in the context of the reason for the prior denial, the added evidence cures a prior evidentiary defect. Accordingly, the criteria for reopening the claim are met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Service connection for left ear hearing loss is denied. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran has current left ear hearing loss for VA purposes, documented on VA examination in July 2014. On his service entrance examination, left ear hearing loss was not noted and the Veteran raised no pertinent complaints. Subsequent service treatment records are silent for relevant documentation. On his separation examination, no abnormalities of the left ear were found, and left ear hearing loss was not documented on audiometric testing. However, as discussed, the Veteran was exposed to excessive noise during the performance of his military occupational specialty during service. On the matter of the etiology of the disability, the record contains a February 2002 VA treatment record, and the July 2014 VA examination report. In April 2001, the Veteran underwent an audiological consultation and was diagnosed with moderate to severe sensorineural hearing loss in the left ear. The audiologist noted that he was exposed to noise during military service. In an February 2002 addendum report, she further stated that it was likely that his hearing loss was at least in part the result of military noise exposure. On VA examination in July 2014, a VA examiner reviewed the claims file and examined the Veteran. She noted that there was no post-service history of recreational noise exposure, but there was post-service occupational noise exposure during the Veteran's career as a law enforcement officer. She noted that he had used hearing protection in his job. She recounted the numerical audiological findings documented in service treatment records, including from an August 1958 audiogram and subsequent June 1962 audiogram. While acknowledging his in-service noise exposure, she determined that unlike in the right ear, there was no permanent positive threshold shift documented at any frequency in the left ear during service. As such, she opined that it was not at least as likely as not that his current left ear hearing loss was related to service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current left ear hearing loss is related to the Veteran's active military service, or that a chronic disability was incurred in service. The Veteran was clearly exposed to acoustic trauma in service. However, the evidence does not show that left ear hearing loss was then-present, or that the disability has been continuous since service. Left ear hearing loss was not found within one year of separation from service; rather, the evidence reflects that the current disability was not shown until approximately 2001, many years after service discharge. The medical opinion evidence is also persuasive. The July 2014 VA examiner addressed the contentions of direct service connection, but opined that the Veteran's current left ear hearing loss was not related to in-service noise exposure due to the lack of a permanent positive threshold shifts documented at any frequency in the left ear during service. She based her conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. She reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusion reached. In contrast, the opinion of the February 2002 VA provider is of no persuasive value as she did not provide any rationale or explanation for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board has considered the medical literature cited by the Veteran's representative in the January 2019 brief, which generally address noise exposure and hearing loss. However, this evidence does not address the facts that are specific to this Veteran's particular case. As such, the Board finds that the information reflected in the submitted articles simply is not probative of the specific medical questions at issue in this appeal, and is outweighed by the professional opinion of the July 2014 VA examiner, which is more detailed and focused on the particular circumstances at issue here. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). The only other evidence to the contrary of the VA examiner's opinion is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as sensorineural hearing loss. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. REASONS FOR REMAND 1. Service connection for a disability manifested by vertigo, to include as secondary to service-connected right ear hearing loss, is remanded. The Veteran has current left peripheral vestibular pathology and vertigo, documented in March 2019 and January 2015 treatment records, respectively. He reports that he has had problems with balance ever since sustaining a head injury while playing football in service. His service treatment records, including those dated from September 1959 and October 1959, as well as on separation from service, document the head injury as contended. He alternatively reports that his symptoms of vertigo are secondary to his service-connected right ear hearing loss. In this regard, in January 2019, his representative summarized current medical literature linking vertigo and sensorineural hearing loss, and provided an accompanying hyperlink to the articles. The Board's February 2019 decision was vacated by the Court in September 2020 due to its failure to address whether the Veteran's vertigo may be a symptom of his service-connected right ear hearing loss. A VA medical opinion has not yet been obtained for the claim. Given the medical literature provided by the Veteran's representative and the concerns of the Court, the Board finds that a VA medical opinion must be obtained prior to appellate adjudication. The matter is REMANDED for the following action: Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of his disability manifested by vertigo, including left peripheral vestibular pathology diagnosed in March 2019. A rationale must be provided for all conclusions reached. While a medical opinion is required, you are asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (a.) Opine on whether it is at least as likely as not that the current disability, including left peripheral vestibular pathology, began during any period of active service or is related to an in-service injury, event, or disease, to include the head injuries sustained while playing football in service. In this rendering this opinion, please consider the following: September 1959 documentation of being struck in the face with a football October 1959 documentation of a football injury requiring sutures in the face April 1962 Report of Medical Examination and Report of Medical History noting the Veteran's football injuries. (Continued on the next page) (b.) Opine on whether it is at least as likely as not that the current disability, including left peripheral vestibular pathology, has been (i.) caused, or (iii.) aggravated (i.e., worsened) by the Veteran's service-connected right ear hearing loss. In rendering this opinion please consider the Journal of American Academy of Otolaryngology research cited by the Veteran's representative in the January 2019 brief linking vertigo and sensorineural hearing loss. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.