HEARING LOSS

Summary

The veteran, who served in the U.S. Navy from April 1980 to April 1984, appeals the denial of service connection for hearing loss and tinnitus. The Board granted service connection for tinnitus, finding that the veteran's lay statements regarding continuity of symptoms since service were competent and credible, and that the evidence was in equipoise, warranting the benefit of the doubt. The Board noted that while service treatment records showed no complaints of tinnitus, the veteran's consistent testimony and a private audiological examination demonstrating worsening hearing and speech discrimination scores were sufficient to reopen the claim for hearing loss. The Board found this evidence new and material, potentially substantiating the claim. The claims for hearing loss, an acquired psychiatric disability (including PTSD and depression), right hand/finger disability, left hand/finger disability, right knee disability, left knee disability, and back disability were remanded. For these remanded claims, the Board found that the veteran's lay statements regarding pain and functional loss, coupled with some evidence of in-service injury (right knee), triggered the VA's duty to assist. The Board ordered new VA examinations for the psychiatric conditions, hearing loss, back, knees, and hands/fingers to determine the nature and etiology of these disabilities and their relationship to service.

Rationale

New and material evidence submitted to reopen claim.; Private audiological exam shows worsening hearing loss and speech discrimination.; Veteran's testimony regarding continuity of symptoms since service.; Remand for VA audiological examination to determine nature, etiology, and service connection.

Full Decision Text

Citation Nr: 24012037
Decision Date: 03/14/24	Archive Date: 03/14/24

DOCKET NO. 20-26 407
DATE: March 14, 2024

ORDER

New and material evidence having been presented to reopen a claim of entitlement to service connection for hearing loss, to this limited extent, the appeal is granted.

New and material evidence having been presented to reopen a claim of entitlement to service connection for tinnitus, to this limited extent, the appeal is granted.

Entitlement to service connection for tinnitus is granted.

REMANDED

Entitlement to service connection for hearing loss is remanded.

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is remanded.

Entitlement to service connection for a right hand/finger disability is remanded.

Entitlement to service connection for a left hand/finger disability is remanded.

Entitlement to service connection for a right knee disability is remanded.

Entitlement to service connection for a left knee disability is remanded.

Entitlement to service connection for a back disability is remanded.

FINDINGS OF FACT

1. In an October 2014 rating decision, the AOJ denied service connection for hearing loss and tinnitus; the Veteran did not file a timely Notice of Disagreement (NOD), and the claims became final. Since that decision, the Veteran has provided new and material evidence regarding the possible etiology of the claimed disabilities.

2.  The weight of the probative evidence of record shows that the Veteran has continuously had symptoms of tinnitus since service.

CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen a claim for service connection for hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

2. New and material evidence has been received to reopen a claim for service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

3.  Resolving all reasonable doubt in favor of the Veteran, the criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307(a)(6), 3.309(e).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from April 1980 to April 1984.

New and Material Evidence 

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. §§ 7104, 7105. However, 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. 38 U.S.C. § 5108. 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).

There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id.

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992).

1. New and material evidence having been presented to reopen a claim of entitlement to service connection for a hearing loss 

2. New and material evidence having been presented to reopen a claim of entitlement to
 reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id.

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992).

1. New and material evidence having been presented to reopen a claim of entitlement to service connection for a hearing loss 

2. New and material evidence having been presented to reopen a claim of entitlement to service connection for tinnitus 

An October 2014 rating decision denied claims of service connection for hearing loss and tinnitus. The Veteran did not file a timely NOD to that decision, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In October 2018, the Veteran applied to reopen those claims. A rating decision dated January 2019, declined to reopen the Veteran's claims for service connection, citing no new and material evidence had been received since the last denial. 

The new evidence submitted by the Veteran, or acquired by the VA since that last denial, includes VA/private medical records and lay statement, with testimony from a Board hearing with the undersigned. In this regard, the Veteran submitted a private audiological examination which demonstrates a worsening of the Veteran's hearing since his last VA examination, to include speech discrimination scores which may meet the criteria for hearing loss under VA law. In addition to this, the Veteran also presented testimony with regards to the specific circumstances of his inservice noise exposure, and the fact that his hearing loss and tinnitus started during his active service and progressed until the present. 

Here, prior to the last final denial, no formal diagnosis for hearing loss had been noted of record, as the Veteran's previously afforded VA examination found audiometric and speech discrimination scores failed to achieve those criteria set out by VA regulations to constitute hearing loss.  Since that final denial, the Veteran's later submitted private audiological examination does show a worsening in both audiometric and speech discrimination scores. The Board finds while the private examination report may not be dispositive of the claim, such evidence must be considered new, as it were not previously part of the record, and material, as it speaks to a previous unestablished fact that has the possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence sufficient to reopen the claim for hearing loss has been submitted, and the claim is reopened. 38 C.F.R. § 3.156.

Likewise, with regards to the Veteran's claim for tinnitus, since the last final denial, the Veteran has provided both lay statements, as well as hearing testimony, that explicitly addressed continuity of symptoms with regards to ringing in his ears since his active service.  Again, the Board finds such evidence is both new, as it was not previously a part of the prior claim, and material, as it establishes inservice incurrence/exposure and continuity of symptoms since service, sufficient to reopen the claim for tinnitus, and the claim is reopened. 38 C.F.R. § 3.156.

As such, to this extent only, the Veteran's claims to reopen are granted.

Service Connection

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999).

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. As tinnitus, an organic disease of the nervous system, is among the chronic diseases listed at 38 C.F.R. § 3.309(a), the Board finds that continuity of symptomatology may serve in lieu of medical nexus. 38 C.F.R. § 3.303(b).

Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999
 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. As tinnitus, an organic disease of the nervous system, is among the chronic diseases listed at 38 C.F.R. § 3.309(a), the Board finds that continuity of symptomatology may serve in lieu of medical nexus. 38 C.F.R. § 3.303(b).

Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (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 (Fed. Cir. 2007).

Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995).

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102.

1. Entitlement to service connection for tinnitus 

The Veteran contends that tinnitus is the result of noise exposure during active service, to include working on aircrafts, and that he began experiencing ringing in the ears during, and/or shortly after his active service, which has continued to the present. A review of the competent evidence of record shows the Veteran has credibly reported symptoms of tinnitus continuously since service. While there is a negative VA examination opinion of record, the Board finds that as the Veteran is competent and credible in providing evidence of the presence of tinnitus, the evidence is considered at least in equipoise. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that the claim for service connection for tinnitus must be granted.

Here, the Board finds that the Veteran, as a lay person, is both credible and competent to speak to the medical condition of tinnitus, and the fact that it has been continuous since active service. Specifically, the Board finds that, tinnitus, which manifests as ringing in the ears, is not the type of medical condition which requires specialize medical knowledge or training to assess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A lay person, such as the Veteran, may competently provide evidence that he perceives ringing in the ears. Similarly, the Veteran may also competently provide evidence of when that condition started and if it has continued to the present. The Veteran has consistently asserted, to include during his VA examination, that he began experience ringing in the ears since service, and that those symptoms has continued until the present.

As an initial matter, the Board notes that both the evidence of record demonstrates a current disability of tinnitus, as well as conceded inservice noise exposure, due to the Veteran's MOS as flight deck crewmember.  Here, the pervious September 2014 VA examination notes explicit finding that the Veteran suffers from reported tinnitus.  To this end, the Veteran has also asserted many times, to include during his Board hearing that he currently has, and has had, issues with tinnitus since service. 

Likewise, during the Veteran's hearing testimony, the Veteran explicitly addressed the nature, frequency, and duration of his inservice exposure to noise and acoustic trauma, as a crewman working next to jets and aircrafts on the flightdeck/flightline. The Board finds that Veteran's lay statements to be both competent and credible and as such, the first two elements of service-connection have been established.  

The Board further finds that the Veteran
.  Here, the pervious September 2014 VA examination notes explicit finding that the Veteran suffers from reported tinnitus.  To this end, the Veteran has also asserted many times, to include during his Board hearing that he currently has, and has had, issues with tinnitus since service. 

Likewise, during the Veteran's hearing testimony, the Veteran explicitly addressed the nature, frequency, and duration of his inservice exposure to noise and acoustic trauma, as a crewman working next to jets and aircrafts on the flightdeck/flightline. The Board finds that Veteran's lay statements to be both competent and credible and as such, the first two elements of service-connection have been established.  

The Board further finds that the Veteran's lay statements regarding the continuity of tinnitus symptoms to be credible. The Board notes that the Veteran has noted that the ringing in his ears began during service, and that those symptoms have continued to the present. To this end, even during his September 2014 VA examination, the examiner noted that his tinnitus started during service in 1984.  Likewise, arguments submitted from the Veteran's representative notes the Veteran asserting that his tinnitus started during his service. Therefore, the Board finds the Veteran credible with regards to the continuity of tinnitus since service.

To this end, the Board acknowledges that with respect to whether there is a nexus or relationship between current tinnitus and service, examination and opinion acquired by the VA in September 2014 opined that it was less likely as not that the claimed tinnitus was related to service. A close review of the September 2014 opinion, however, reveals that the VA examiner relied exclusively on the fact that the Veteran's service treatment records (STRs) noted no complaints of tinnitus during active service; therefore, the examiner found no nexus between the Veteran's tinnitus and his inservice noise exposure. 

While the Board acknowledges that a review of the service medical and post-service medical records shows no evidence of complaints or treatments for tinnitus, the Board nonetheless finds that an observable condition such as tinnitus can be competently described by the Veteran, a lay person, and require no supporting medical evidence to be considered present. Here, even assigning the September 2014 VA examination report full probative value, the Board finds that the positive and negative evidence regarding this claim is at least in equipoise.

Therefore, based on the evidence and arguments presented, the Board finds that the Veteran's tinnitus was present during service and has a continuity of symptomatology since service. As the Board finds that the Veteran's lay statements have competently and credibly established continuity of symptomatology, and resolving reasonable doubt in favor of the Veteran, the claim for service connection for tinnitus must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(b).

REASONS FOR REMAND

1. Entitlement to service connection for hearing loss is remanded.

The Veteran contends he has hearing loss, which is related to his active service hazardous noise exposure during his active service, working on the flight deck/line. During his previous claim period, he underwent a September 2014 VA audiological examination in which testing showed no hearing loss. 38 C.F.R. § 3.385. As such, the Veteran's claim was denied in an October 2014 rating decision which became final. 

During the pendency of this claims period, the Veteran has asserted, to especially include during his September 2022 Board hearing, that his hearing has become worse since 2014. To this end, the Veteran has also submitted private audiological examination results, which do show increased in the severity of his hearing loss, to include speech discrimination, that meets the VA's criteria for hearing loss. 

Due to such evidence, the Board finds an additional VA audiological examination is warranted to determine if the Veteran has current hearing loss per 38 C.F.R. § 3.385, and if so, whether the disorder is causally related to service.

2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is remanded.

3. Entitlement to service connection for a right hand/finger disability is remanded.

4. Entitlement to service connection for a left hand/finger disability is remanded.

5. Entitlement to service connection for a right knee disability is remanded.

6. Entitlement to service connection for a left knee disability is remanded.

7. Entitlement to service connection for a back disability is remanded.

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38
.

2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is remanded.

3. Entitlement to service connection for a right hand/finger disability is remanded.

4. Entitlement to service connection for a left hand/finger disability is remanded.

5. Entitlement to service connection for a right knee disability is remanded.

6. Entitlement to service connection for a left knee disability is remanded.

7. Entitlement to service connection for a back disability is remanded.

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board finds that sufficient evidence is of record to invoke the VA's duty to provide the Veteran a VA examination to determine the nature and etiology of his claimed back, knees, hand/fingers, and psychiatric disabilities. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, the Veteran claims that he incurred an injury of the back/knees/hands during active service from the nature of the physical labor and repetitive motion he was required to perform. To this end, the Veteran noted that as part of his MOS was working on the flight deck where he was required to continuously bend and/or kneel due to the aircrafts, all while having to be help move heavy equipment and materials. The Veteran testified, that his current back, knee, and hand pains/disabilities are all the result of such work during service, and that such pain and functional loss is due to his active service.  While the medical records, to include the Veteran's STRs, do not show diagnosis or treatment for the claimed disabilities, with the exception of a right knee injury during service, the Board finds that the Veteran is competent to report experiencing pain and functional loss, to establish a current disability; and as he has specifically asserted that such pain arose during service, and has continued until the present, the Board finds that such is sufficient to trigger the VA's duty to assist and afford the Veteran a VA examination with regards to these physiological disabilities.   

Finally, the Board notes that the RO adjudicated the Veteran's acquired psychiatric disorder claim as a claim for entitlement to service connection for PTSD. In Clemons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, though a veteran may only seek service connection for PTSD, the Veteran's claim "cannot be limited only to that diagnosis but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. Therefore, the Board will address whether service connection is warranted for an acquired psychiatric disorder, however diagnosed. The issue has been recharacterized accordingly as noted above.

The Board notes that the Veteran was not afforded a VA examination for his claimed psychiatric disability, as the RO was not able to verify the Veteran's claimed inservice stressor. A close review, however, of the development of the Veteran's claim reveals favorable medical evidence, to include VA treatment psychiatric treatment records noting diagnoses of PTSD and depression.  To this end, the Board notes that unlike the criteria for PTSD, service-connection for other psychiatric disability, to include depression does not required a confirmed inservice stressor.  Therefore, as there is medical evidence of a current diagnosis for depression, and the Veteran was expressly provided hearing testimony of specific incidents of his inservice stressor, the Board must find that the VA's duty to afford the Veteran VA examination has been triggered, and remand is required.  

The matters are REMANDED for the following action:

1. Obtain all VA treatment records not already of record and associate them with the claims file.

2. Schedule the Veteran for a VA audiological examination by an appropriate medical professional to determine the nature and etiology of his hearing loss, if diagnosed. The examiner should determine if the Veteran has left ear hearing impairment for VA purposes. See 38 C.F.R. § 3.385. If so, the examiner should provide an opinion as to whether it is at least as likely as not
 expressly provided hearing testimony of specific incidents of his inservice stressor, the Board must find that the VA's duty to afford the Veteran VA examination has been triggered, and remand is required.  

The matters are REMANDED for the following action:

1. Obtain all VA treatment records not already of record and associate them with the claims file.

2. Schedule the Veteran for a VA audiological examination by an appropriate medical professional to determine the nature and etiology of his hearing loss, if diagnosed. The examiner should determine if the Veteran has left ear hearing impairment for VA purposes. See 38 C.F.R. § 3.385. If so, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder had its onset during, or is otherwise related to, service, to include his reported exposure to hazardous noise during service.

3. Schedule the Veteran for a VA mental disorders examination. The examiner must review the claims file and should note that review in the report. The examiner should diagnose all psychiatric disabilities found and should specifically state whether or not each criterion for a diagnosis of PTSD is met; to this end, any determinations should be reconciled with findings already in the Veteran's VA treatment records, to include noted diagnoses for PTSD and depression. The examiner should opine whether it is as likely as not that any current psychiatric disability, to include depression, is related to service or any incident of service. 

4. Schedule the Veteran for VA examinations to assess the nature and etiology of his claimed back, knee, and hand/finger/wrist disabilities. The examiner is asked to interview the Veteran, review the claims file, complete all necessary diagnostic tests, and accomplish the following: (a) Provide specific medical diagnoses pertaining to the Veteran's claimed disabilities of the back, knees, and hands/fingers/writs, to include noting any diagnosed disability during the pendency of the claims period; and (b) Provide an opinion as to whether it is at least as likely as not that any diagnosed of the back, knees, and hands/fingers/writs, to include any diagnosed during the claims period, is etiologically related to his service, to include consideration of any lay statements. The examiner must explicitly speak to the Veteran's claimed inservice incurrence, and provide a complete and thorough rationale for all opinions offered. 

 

 

Corey Bosely

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Zhu, Zi Heng

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.