Citation Nr: 21029335 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 19-06 452 DATE: May 13, 2021 ORDER 1. New and material evidence having been received, the application to reopen the claim for service connection for tinnitus is granted. 2. The reopened claim of entitlement to service connection for tinnitus is denied. 3. Entitlement to service connection for bilateral hearing loss disability is denied. REMANDED 4. Entitlement to service connection for a lumbar spine (back) disability is remanded. 5. Entitlement to service connection for bilateral ankle disability is remanded. 6. Entitlement to service connection for a left elbow disability is remanded. 7. Whether new and material evidence has been submitted to reopen the claim for service connection for an eye disability is remanded. FINDINGS OF FACT 1. Evidence received since the July 2007 Board decision that denied the claim for service connection for tinnitus, relates to an unestablished fact necessary to substantiate the claim for service connection and raises a reasonable possibility of substantiating the claim. 2. Bilateral hearing loss disability did not have its onset during active service, sensorineural hearing loss was not manifest within one year of service discharge, and bilateral hearing loss disability is not otherwise related to active service. 3. Tinnitus did not have its onset during active service, was not manifest to a within one year of service discharge and is not otherwise related to active service. CONCLUSIONS OF LAW 1. As evidence received since the July 2007 Board decision is new and material, the criteria for reopening the claim of entitlement to service connection for tinnitus are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to October 1979. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The claim for entitlement to recognition of the Veteran's daughter, D.L., as a helpless child on the basis of permanent incapacity for self-support before attaining the age of 18 is addressed in a separate Board remand. After the issuance of the November 2018 statement of the case (SOC), but prior to certification of the appeal to the Board, relevant VA treatment records were associated with the record. However, such evidence is not relevant to the claims for service connection for tinnitus and bilateral hearing loss disability, and thus, the Veteran is not prejudiced by the Board's initial review of the evidence in adjudicating the claims. In addition, as the Board is remanding the remaining claims, the Agency of Original Jurisdiction (AOJ) will have opportunity to review the additional evidence received. See 38 C.F.R. §§ 19.31(b)(1), 19.37(a). New and Material Evidence 1. New and material evidence to reopen the claim of entitlement to service connection for tinnitus Prior decisions of the Board are final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, 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 means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran initially sought service connection for tinnitus in November 2004. The claim was denied in a July 2005 rating decision. The Veteran filed a Notice of Disagreement in September 2005 and perfected the appeal to the Board. A hearing was held by a Veterans Law Judge. In a July 2007 decision, the Board denied the appeal, finding that the Veteran did not have a tinnitus disability and there was no nexus between his claimed tinnitus and service, and that tinnitus did not manifest within one year of discharge from service. The July 2007 Board decision is final and binding. 38 U.S.C. §§ 7104(b), 7252; 38 C.F.R. § 20.1100. Since the July 2007 Board decision, the Veteran has submitted additional evidence pertaining to this claim. Specifically, the Veteran submitted an April 2016 private medical opinion in which the audiologist opined that the Veteran's tinnitus is related to the Veteran's military noise exposure, to include water supply and distillation units that were powered by two, five horsepower gas engines, positioned about head high, hazardous running diesel power water drilling rigs, as well as hazardous C130 aircraft noise work during guard duty on the flight line five days a week. The audiologist noted the Veteran was not provided ear protection after basic training. The Veteran also reported that he began noticing tinnitus while stationed in Georgia in 1978 and denied post-service noise exposure without ear protection. Given that the threshold for substantiating a claim to reopen is low, this evidence, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus, and raises a reasonable possibility of substantiating the claim. Thus, the claim of entitlement to service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. As the agency of original jurisdiction considered the claim on the merits, the Board may consider the claim on merits as well. Service connection 2. The reopened claim of entitlement to service connection for tinnitus 3. Entitlement to service connection for bilateral hearing loss disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus (organic diseases of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for bilateral hearing loss disability and tinnitus. The reasons follow. The Veteran contends that over the course of his military career, he was exposed to loud noises, including from engines of water purifier systems and cargo planes and helicopters while on guard duty along the flight line for 100 days, as noted above. He reported that he was issued hearing protection only during basic training. The Veteran stated that he experienced ringing in his ears around 1976 and that the noise exposure caused his tinnitus and bilateral hearing loss. See September 2006 Board hearing transcript, April 2016 private opinion, and October 2016 statement. Although the record establishes the presence of current bilateral hearing loss disability and tinnitus, and the exposure to hazardous noise in service, the preponderance of the evidence is against a causal relationship between the present disabilities and service. The reasons for this determination follow. At the Veteran's entrance examination in February 1975, normal findings on audiometric testing were documented that did not meet the VA standards for a hearing loss disability in either ear. On audiological testing, the recorded pure tone thresholds, in decibels, were as follows: HERTZ February 1975 500 1000 2000 3000 4000 RIGHT 10 10 5 - 5 LEFT 25 15 5 - 10 The Veteran denied a history of hearing loss or ear/nose/or throat trouble. The Veteran's service treatment records (STRs) are absent complaints regarding hearing loss and tinnitus. The Veteran underwent a separation examination in August 1979. He received a normal clinical evaluation of the ears. On audiological testing, the recorded pure tone thresholds, in decibels, were as follows: HERTZ August 1979 500 1000 2000 3000 4000 RIGHT 5 5 5 5 10 LEFT 10 15 10 15 20 On the corresponding Report of Medical History, the Veteran denied a history of hearing loss and ear/nose/or throat trouble. He also wrote on that document that he was in good health and denied any illness or injury other than those noted. The service treatment records are absent complaints regarding hearing loss and tinnitus. Thereafter, the record does not contain objective findings of bilateral hearing loss disability or tinnitus for decades after service discharge until the filing of the claim for service connection for tinnitus in November 2004 and the claim for service connection for bilateral hearing loss in March 2016 (VA Form 21-0966 Intent to File). The Veteran underwent a VA audiological examination in January 2017. On audiological testing, the recorded pure tone thresholds, in decibels, and the Maryland CNC results were as follows: HERTZ Speech discrimination 500 1000 2000 3000 4000 RIGHT 35 40 60 65 65 66 LEFT 40 45 45 55 55 78 The Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. The examiner concluded that it was less likely than not that the Veteran's bilateral hearing loss and tinnitus was caused by or a result of an in-service event. The examiner explained there was no permanent positive threshold shift when comparing the Veteran's audiological examination findings from entry into service in 1975 to his separation examination in 1979. The examiner also explained that the Veteran's military occupation as a water supply man carried a low probability of hazardous noise exposure. Regarding hearing loss, the examiner noted that current research of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely (Institute of Medicine). The examiner noted the Veteran has a significant history of recreational and occupational noise exposure following military service. The examiner also documented the service treatment records are silent on complaints of tinnitus or ear problems during service. The examiner opined the Veteran's tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The Veteran submitted an April 2016 medical opinion authored by a private audiologist, in which the audiologist concluded that the Veteran had a current diagnosis of tinnitus and bilateral hearing loss disability that were more likely than not due to or related to military hazardous noise during his active duty service. In the letter, the audiologist wrote that the Veteran was exposed to hazardous noise from water supply and distillation units that were powered by two five horsepower gas engines positioned about head high. He also explained the Veteran was exposed to hazardous running diesel power water drilling rigs and hazardous C130 aircraft noise from guard duty on the flight line five days a week. The audiologist wrote the Veteran was not provided ear protection after basic training. The audiologist also noted the Veteran reported he began noticing his tinnitus while stationed in Georgia in 1978 and the Veteran denied post-service noise exposure without ear protection. The Board has considered the evidence submitted by the Veteran, including the medical opinion and lay statements. The lay statements confirm that the Veteran was exposed to hazardous noise during service. As to whether the current bilateral hearing loss disability and tinnitus are related to service, the Board finds that the most probative evidence of record is the January 2017 VA medical examination report and opinion. The January 2017 negative opinion is supported by the Veteran's treatment records that show no complaints of hearing loss or tinnitus issues during service, a denial of hearing loss at separation, no significant threshold shifts during service, and no hearing loss or tinnitus for decades after service discharge. Additionally, the 2017 VA examiner is an audiologist, who personally examined the Veteran's hearing, reviewed the evidence of record, and provided a reasoned rationale for his conclusions, which is supported by the longitudinal record, medical principles, and medical treatise evidence. The Board finds that the probative value of the April 2016 private audiology opinion is diminished for several reasons. It is based on the Veteran's history of having tinnitus since service, which statements the Board finds lack credibility, which will be explained in more detail below. The private audiologist did not document within the opinion that he had reviewed pertinent medical evidence in the claims file, such as STRs, to include the audiograms documented in the STRs. Thus, the private audiologist's opinions appear to be based entirely on the Veteran's self-reported service and medical history and not a review of the records. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (an opinion that is based on review of the medical evidence is more probative than an opinion that is based on the Veteran's reported history). Nonetheless, even if the private audiologist reviewed the records, a review of the records without addressing the significant medical facts, i.e., the absence of complaints of hearing loss or tinnitus during service, the audiograms from service entrance and service discharge, the Veteran's denial of a history of hearing loss and ear trouble at service discharge 1979, as well as almost 25 years of no complaints of tinnitus symptoms and 37 years for bilateral hearing loss symptoms, significantly lessen the probative value of this opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (U.S. 2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." (internal quotation omitted)). Moreover, no rationale was offered for the conclusory opinions that the Veteran's bilateral hearing loss disability and tinnitus were related to in-service hazardous noise exposure. See id. The Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. The Board also has the authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F. 3d 604 (Fed. Cir. 1996) (per curiam) (table). Therefore, in light of the above, the Board finds that the April 2016 private audiologist's opinion is of lessened probative value. Although the Veteran is competent to report his observed symptoms, his credibility is compromised by inconsistent facts. The Veteran's August 1979 separation examination does not show diagnoses or complaints of bilateral hearing loss or tinnitus, and the Veteran specifically denied a history of hearing loss and ear trouble at that time. The Veteran had documented in the November 2004 application that he was not given ear plugs during service. At the September 2006 Board hearing, he testified under oath he had not been given "any type of hearing protection" while in service. However, his service treatment records document that on November 7, 1975, he was fitted for ear plugs and was given a size small. This service document refutes the Veteran's allegations of not being provided ear plugs or hearing protection during service. The Board accords more probative value to facts documented contemporaneously with the Veteran's period of service than the statements he has made decades later. Accordingly, the Veteran's credibility has been damaged. As a result, his allegation of having tinnitus during service is not credible. While the Veteran believes that his hearing loss disability and tinnitus are related to in-service exposure to noise hazards, he is not competent to make an etiological conclusion regarding the cause of his observed symptoms relating to an internal physiological process. As to presumptive service connection, the preponderance of the evidence is against a showing that the Veteran's tinnitus or bilateral sensorineural hearing loss was manifested to a compensable degree within one year of separation from active duty. As discussed above, the Veteran's service treatment records are absent complaints or treatment for bilateral hearing loss or tinnitus, and, as stated above, show that the Veteran did not feel he had hearing loss or tinnitus when he was discharged from service in 1979. The record does not establish that the Veteran sought treatment or received a diagnosis of either disability for more than 25 years for tinnitus and 37 years for bilateral hearing loss disability following service discharge. Thus, service connection on a presumptive basis for a chronic disease is also not warranted. For all the reasons laid out above, the Board finds the preponderance of the evidence is against the claims for service connection for tinnitus and bilateral hearing loss disability, the benefit-of-the-doubt doctrine is not for application, and the claims are denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 4. Entitlement to service connection for a lumbar spine disability. 5. Entitlement to service connection for bilateral ankle disability. 6. Entitlement to service connection for a left elbow disability. 7. Whether new and material evidence has been submitted to reopen the claim for service connection for an eye disability. The Board notes that the VA treatment records document that the Veteran received private treatment for his eye care from Dr. William Dunn, a retina specialist, Dr. Martin Pourkesali, and Dr. Timothy Root. However, records from the private eye care physicians have not been associated with the claims file. The records also reflect the Veteran received primary care treatment from Dr. Rodger Sayre at Geisinger, who was documented to be the Veteran's private primary care physician. The Board also finds chiropractic treatment records should be obtained, as 2006 to 2007 VA treatment records document the Veteran reported that he received chiropractic treatment for his back/lumbar spine discomfort. Accordingly, a remand is required for the Board to obtain these private treatment records prior to deciding the claims. The matters are REMANDED for the following action: 1. Ask the Veteran to complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for treatment from the following providers: Dr. William Dunn; Dr. Martin Pourkesali; Dr. Timothy Root; Dr. Rodger Sayre at Geisinger; The private chiropractic practice where the Veteran received treatment from 2006 to 2007; as well as from any other periods that he received treatment for lumbar spine (back), bilateral ankle, and left elbow disabilities. 2. After all available evidence has been associated with the record, review the evidence and determine if further development is warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.