Citation Nr: 21031034 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-04 600 DATE: May 20, 2021 ORDER New and material evidence having been received, the service connection claim for bilateral hearing loss is reopened. New and material evidence having been received, the service connection claim for tinnitus is reopened. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for diabetic peripheral neuropathy of right upper extremity is remanded. Entitlement to service connection for diabetic peripheral neuropathy of left upper extremity is remanded. Entitlement to service connection for essential tremor is remanded. FINDINGS OF FACT 1. An unappealed February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's entitlement to service connections for bilateral hearing loss and tinnitus based on the determination that the evidence did not show a link or nexus between the Veteran's current disabilities and service. 2. The evidence received since the February 2014 rating decision, to include the Veteran's September 2020 hearing testimony regarding the onset and continuity of his bilateral hearing loss and tinnitus symptoms, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran's service connection claims for bilateral hearing loss and tinnitus. 3. There is approximate balance of positive and negative evidence on whether the Veteran's right ear hearing loss and tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The February 2014 rating decision, which denied the Veteran's claim of entitlement to service connections for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). 2. The evidence received since the February 2014 rating decision is new and material, and the claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The evidence received since the February 2014 rating decision is new and material, and the claim of entitlement to service connection for tinnitus is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385 (2020). 5. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to July 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the VARO. In September 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matters are before the Board. Reopening claims Reopening a claim for service connection which has been previously and finally disallowed, requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108 (2012); Evans v. Brown, 9 Vet. App. 273, 285 (1996); Graves v. Brown, 8 Vet. App. 522, 524 (1996). "New evidence" means existing evidence not previously submitted to VA, and "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. 38 C.F.R. § 3.156(a) (2020). 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. In a February 2014 rating decision, the RO previously denied the Veteran's service connection claims for bilateral hearing loss and tinnitus. The Veteran did not appeal this decision timely, and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2020). The Board finds that VA received new and material evidence since the prior final February 2014 rating decision denying the Veteran's entitlement to service connections for bilateral hearing loss and tinnitus. The new and material evidence includes the Veteran's September 2020 hearing testimony regarding the onset and continuity of his bilateral hearing loss and tinnitus symptoms. The evidence is new as it was not considered at the time of the prior final denial of the Veteran's claims, and the new evidence is material as it reasonably substantiates the nexus element, which was not established at the time of the prior denial. See February 2014 Rating Decision. Consequently, the Veteran's claims for service connection for bilateral hearing loss and tinnitus are reopened, and the Board must consider its merits. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). Service connection The Veteran is seeking service connections for bilateral hearing loss and tinnitus. He contends that his current disabilities are due to in-service acoustic trauma from being exposure to significant military noise. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1131 (2012). Generally, to establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service, a combination of sufficient manifestations to identify the disease entity and sufficient observation to establish chronicity at the time is required. 38 C.F.R. § 3.303(b) (2020). An alternative to showing chronicity in service is a showing of continuity of symptoms after discharge. The U. S. Court of Appeals for the Federal Circuit, however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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(3), 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2020). While hearing loss disability is not a disease listed under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. As discussed below, the Veteran's hearing loss disability has been described as sensorineural in nature; hence, the Veteran's hearing loss, to the extent that they have been shown by the evidence as being disabling, may be considered for service connection under the presumptive provisions contained in 38 C.F.R. §§ 3.307 and 3.309. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2020). The Board notes that the evidence of record shows the Veteran's bilateral sensorineural hearing loss, which meets the requirements of 38 C.F.R. § 3.385. Also, the evidence contains the Veteran's current diagnosis of recurrent tinnitus. The Veteran's service records do not show any in-service complaints of hearing loss or tinnitus. The Veteran's separation examination included a whisper test, but the Board acknowledges that the whisper test is not a reliable method of determining hearing loss, and thus finds that there is not a reliable audiological evaluation available for the time of separation. During the September 2020 hearing, the Veteran testified that he experienced acoustic trauma from his exposure to significant military noises during combat without hearing protections, including noises from big guns shooting overhead, helicopters, and a blast right in front of the Veteran's foxhole from which he could not hear for some time afterwards. See also June 2016 Statement in Support of Claim (the Veteran's acoustic trauma also happened during a radio explosion in his hand which was directly touching his ear; he is service-connected for the injuries sustained during that explosion). The Veteran stated that he could not hear as well as he used to when he got out of service and his hearing got steadily worse. In particular, the Veteran provided that he was told that his hearing was bad during a hearing examination for the first job he got after separation. He stated that he wore hearing protections for post-service jobs. Also, the Veteran testified that the only time he remembers his ears were not ringing was when he was a kid. In this regard, the Board notes that the Veteran joined active duty service at the age of 19. See DD Form 214. The Board notes that the Veteran's service record shows that his military occupational specialty was a light weapons infantryman and was awarded the Purple Heart Medal. The Board finds the Veteran's testimony regarding his significant military noise exposure with acoustic trauma and the in-service onset and continuation of his bilateral hearing loss and tinnitus symptoms competent and credible and assigns a high probative weight. A VA examiner opined in December 2013 that the Veteran's hearing loss is less likely than not caused by or a result of noise exposure during military service. The examiner pointed out that the Veteran post-military work of 40 years involved heavy equipment and truck driving which required hearing protection when in high noise environment, and the Veteran reported some history of recreational noise exposure from hunting deer and elk where he was firing less than 3 rounds a year on average. The examiner stated that there is no historical evidence to support that the Veteran's hearing loss was incurred during active duty service. However, the examiner also noted that the Veteran's "largest unprotected noise exposure" was during military service and acknowledged the Veteran's report of his in-service exposures to potentially hazardous noises including small weapons fire, machine guns, rockets, mortars, artillery, helicopters, diesel vehicles, grenade, and explosions. As to the Veteran's current tinnitus, the examiner provided a negative etiology opinion and offered exactly the same rationale as the one for hearing loss opinion. The Board finds that the examiner failed to adequately address the Veteran's contention of acoustic trauma sustained in service and its relationship to his current hearing loss and tinnitus. As such, the Board cannot assign high probative weight to the December 2013 VA opinions. Based on above, the Board finds that there is approximate balance of positive and negative evidence on whether the Veteran's bilateral hearing loss and tinnitus had its onset and in service. Thus, resolving reasonable doubt in the Veteran's favor, the Veteran's entitlement to service connections for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385 (2020). REASONS FOR REMAND The Veteran is also seeking service connections for diabetic peripheral neuropathy of right and upper extremities and essential tremor. The Veteran contends that both disabilities are secondary to his service-connected diabetes mellitus type II. The Veteran is currently service-connected for diabetic peripheral neuropathy of right and left lower extremities. On June 2016 VA examination, it was reported that the Veteran does not have a current diagnosis of diabetic peripheral neuropathy affecting his upper extremities. However, the Veteran competently testified during the September 2020 hearing that he has been having peripheral neuropathy symptoms of numbness and tingling with shock in his hands. Also, the Board notes that the Veteran's medical record indicates his diagnosis of polyneuropathy due to diabetes mellitus type II. Based on above, the Board finds that the Veteran should be afforded an updated medical examination to determine whether he now has a diagnosis of diabetic peripheral neuropathy affecting his right and left upper extremities prior to final adjudication of the matter. As to the Veteran's service connection claim for essential tremor, medical opinions by VA examiners were obtained in June 2016 and October 2017. However, the Board notes that the Veteran testified during the September 2020 hearing that his treating physician thought that his essential tremor is related to his diabetes mellitus type II and indicated that he has an upcoming appointment with the doctor from which he may be able to produce more evidence to support his claim. Further, the Veteran submitted a separate statement in November 2020 and indicated that there may be pertinent information available from the record of the appointment that he had with his doctor on November 6, 2020. The Board notes that the latest VA treatment record associated with the Veteran's claims file is from February 2018. In light of the Veteran's testimony and November 2020 statement, the Board finds that the Agency of Original Jurisdiction (AOJ) must take appropriate steps to obtain any outstanding treatment records, including the Veteran's record for his November 2020 doctor's appointment, in order to make a fully informed decision. Accordingly, the matters are REMANDED for the following action: 1. First, the AOJ should contact the Veteran and his representative to request their assistance in obtaining any outstanding treatment record from VA and private sources for the Veteran's peripheral neuropathy of the right and left upper extremities and essential tremor. The AOJ is specifically asked to obtain the Veteran's VA treatment records since February 2018 until present, including the Veteran's November 2020 appointment. Any records requests and/or responses must be associated with the Veteran's electronic claims file. 2. The AOJ must schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran's current diabetic peripheral neuropathy of right and left upper extremities. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. (a.) The examiner is asked to clarify whether the Veteran has current diagnosis of peripheral neuropathy affecting right and/or left upper extremities. (b.) If a current diagnosis is found, the examiner must opine whether the Veteran's peripheral neuropathy of the right and left upper extremities is at least as likely as not (50 percent or greater probability) related to his service-connected diabetes mellitus type II. (c.) The examiner must provide a complete written rationale for any opinion offered. 3. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.