Citation Nr: 0733342 Decision Date: 10/24/07 Archive Date: 11/02/07 DOCKET NO. 05-13 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the United States Navy from August 1951 to August 1955. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The veteran was afforded a local hearing before the RO in July 2005. A transcript is associated with the claims folder. FINDINGS OF FACT 1. A September 1998 RO decision that denied the veteran's original claim for service connection for hearing loss was not appealed and became final. 2. Evidence which relates to a previously unestablished fact necessary to substantiate the underlying claim for service connection for bilateral hearing loss has been submitted; the evidence raises a reasonable possibility of substantiating the claim. 3. There is medical evidence of a current diagnosis of a hearing loss disability as defined by the applicable regulation and there is credible evidence of in-service exposure to excessive noise without ear protection; the competent evidence of record is in approximate equipoise as to whether the veteran's bilateral hearing loss is causally related to in-service noise exposure. 4. There is medical evidence of a current diagnosis of tinnitus and there is credible evidence of in-service exposure to excessive noise without ear protection; the competent and credible lay evidence of record shows that the veteran's tinnitus is causally related to in-service noise exposure. CONCLUSIONS OF LAW 1. New and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 2. With application of the doctrine of reasonable doubt, service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385 (2007). 3. Service connection for tinnitus is warranted. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). As discussed in more detail below, sufficient evidence is of record to grant the claims for service connection for bilateral hearing loss and tinnitus. Therefore, no further development is needed with respect to these claims. Legal Criteria-New and Material Evidence In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision-makers. 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Legal Criteria-Service Connection Applicable law provides that service connection will be granted if it is shown that the veteran experiences a disability resulting from an injury or disease contracted in line of duty, or for aggravation of a preexisting injury or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). The determination of whether the veteran has a service- connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Analysis-New and Material Evidence, Hearing Loss The veteran was initially denied service connection for bilateral hearing loss in a September 1998 rating decision, on the basis that there was no nexus between a current hearing loss and military service. He has since filed his petition to reopen, claiming that such a nexus does exist. The Board notes that the RO initially denied the veteran's petition to reopen the previously denied claim but it is apparent that the claim was subsequently reopened and denied on the merits. However, the Board must make its own determination as to whether new and material evidence has been received to reopen a claim. That is, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of the finding of the RO. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the issue has been characterized as noted on the title page. The veteran submitted a report of a private audiology center, dated in June 2004 which established a current hearing loss disability with a causal nexus to noise exposure experienced in the naval service. As such, there is now competent evidence of record which relates to a previously unestablished fact necessary to substantiate the underlying claim for service connection. Thus, the veteran's claim is reopened and the Board will adjudicate the claim on the merits. Analysis-Service Connection, Hearing Loss and Tinnitus The veteran contends that his service in the rate of Gunner's Mate aboard the USS Philippine Sea during the Korean War exposed him to high levels of acoustic trauma which caused a later development of bilateral hearing loss and tinnitus. The service personnel records indicate that the veteran held the rate of "GM3," or Gunner's Mate 3rd Class, at one point during his service, and that he served aboard USS Philippine Sea where he was awarded the Korean Service Medal. The veteran states that he worked servicing 40mm anti-aircraft guns during live fire exercises, which took place several times a week during at sea periods. Photographs of the veteran's ship were submitted to show the location of the gunnery stations. There is nothing in the service medical records to indicate treatment, diagnosis, or consultation for hearing loss, with the first documented manifestation of hearing loss not noted until many years after service. Of note, however, is a June 2004 report from a private audiology center that had been treating the veteran. This letter indicates that the veteran has been under the care of this facility since March 2001, and that his sensorineural hearing loss was "consistent with the type of loss experienced by loud and sustained noise exposure." The clinical summary includes an opinion that the veteran's hearing loss is "more likely than not a result of the time he spent as a crewmember on active duty with the U.S. Navy, and more than likely manifested while [he] served on active duty." The RO, upon receiving this opinion, scheduled the veteran for an examination with a VA audiologist. In the report of this examination, dated in February 2005, the examiner reported that it is impossible to determine (without resort to speculation) if the veteran's hearing loss and tinnitus were related to military service, as there were no service audiometric tests of record. The examiner went on to state that if he had to speculate, he would say that the hearing loss and tinnitus were not likely related to service. Regarding hearing loss, there is no indication that the clinician from the private audiology clinic reviewed the claims file before drafting the opinion reflecting a positive nexus. This is, however, not problematic, as the history on which the opinion is based is substantiated by the service personnel records. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e.g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran). The Board specifically notes that there is credible evidence of in-service exposure to excessive noise without ear protection and competent medical evidence of a current diagnosis of a bilateral hearing loss disability as defined by the applicable regulation. See 38 C.F.R. § 3.385. Moreover, the negative VA opinion is somewhat speculative and inconclusive in nature. When the latter opinion is weighed against the strength of the private opinion, the Board concludes that the competent evidence of record is at least in equipoise as to whether there is a nexus between the veteran's current hearing loss and in- service acoustic trauma, thereby satisfying the elements of service connection. With respect to tinnitus, the veteran has testified that he began noticing a ringing in his ears while he was on active duty, and that this has been present in varying degrees of severity since his separation from service. There is no reason to dispute the veteran's testimony on this matter. Tinnitus is a disorder which is noticeable by the senses, making the veteran's testimony on a ringing in the ears a competent observation. See Espiritu, supra. Additionally, when a condition may be diagnosed by its unique and readily identifiable features (such as a ringing in the ears for tinnitus), the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, No. 04-0534 (Vet. App. June 15, 2007). Given that there is medical evidence of a current diagnosis of tinnitus, credible evidence of in-service acoustic trauma, and both credible and competent evidence that there has been persistent ringing in the ears since service, the Board finds that service connection is warranted for the veteran's tinnitus. ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs