On appeal from the Department of Veterans Affairs (VA) Regional Office in Wilmington, Delaware
THE ISSUE
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
bilateral hearing loss.
2. Entitlement to service connection for bilateral tinnitus.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Nicholas M. Auricchio, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1951 to April
1953.
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from an August 1994 rating decision
issued by the Department of Veterans Affairs (VA) Regional
Office (RO) in Wilmington, Delaware, which denied service
connection for bilateral hearing loss and tinnitus.
The BVA, in May 1997, remanded the case for further
development, and following the accomplishment of the
requested development, the case was returned to the Board for
appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the RO was incorrect in
denying the benefits sought on appeal. He maintains that
newly submitted evidence warrants a reopening and granting of
his previously denied claim for service connection for
hearing loss. He further maintains that he suffers from
tinnitus which he incurred in service based on his exposure
to acoustic trauma while serving as a
mortarman in Korea. Therefore, a favorable determination is
requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has been submitted to reopen the
veteran’s claim for service connection for bilateral hearing
loss, and the evidence supports the grant of service
connection for bilateral hearing loss. It is further the
decision of the Board that the evidence supports a grant of
service connection for bilateral tinnitus.
FINDINGS OF FACT
1. In a decision dated in April 1991, the RO denied the
veteran’s claim of entitlement to service connection for
hearing loss.
2. The veteran did not timely appeal the April 1991 denial.
3. The veteran has submitted evidence subsequent to the
April 1991 denial which is new, is probative of the question
of whether the veteran has hearing loss disability which is
related to service, and presents a reasonable possibility of
changing the outcome of the veteran’s claim on the merits.
4. The veteran, who participated in combat, was exposed to
acoustic trauma.
5. He has a current diagnosis of bilateral sensorineural
hearing loss.
6. His bilateral hearing loss cannot be dissociated from
noise exposure in service.
7. He also has tinnitus which stems from the acoustic trauma
experienced in service.
CONCLUSIONS OF LAW
1. The RO’s April 1991 rating decision denying service
connection for hearing loss is final. 38 U.S.C.A. §§ 1110,
7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1997).
2. The evidence received since April 1991 is new and
material; thus, the requirements to reopen the veteran’s
claim of entitlement to service connection for bilateral
hearing loss has been met. 38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. § 3.156 (1997).
3. Resolving all reasonable doubt in the veteran’s favor,
bilateral hearing loss was was the result of disease or
injury incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107;
38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (1997).
4. Resolving all reasonable doubt in the veteran’s favor,
bilateral tinnitus was the result of disease or injury
incurred in service. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102,
3.303, 3.304.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As a preliminary matter, the Board observes that the
veteran’s service medical records are unavailable. These
records appear to have been destroyed in the 1973 fire in St.
Louis, Missouri. See Cuevas v. Principi, 3 Vet. App. 542,
548 (1992) (the duty to assist is heightened when service
medical records are destroyed). The RO has expended
sufficient efforts to obtain alternative forms of records,
including a request made to the Office of the Surgeon
General, but its attempt to reconstruct the veteran’s records
have been unsuccessful.
A. Bilateral Hearing Loss
The veteran initially filed a claim of entitlement to service
connection for hearing loss in June 1990. The RO denied this
claim in an April 1991 rating decision on the basis that
available evidence failed to establish that the veteran
incurred or aggravated hearing loss during service. The
veteran was informed of this decision in May 1991, but he did
not submit a notice of disagreement (NOD) in response to this
decision within one year of notification. See 38 C.F.R.
§ 20.201 (1997).
A decision issued by an RO becomes final and not subject to
revision upon the same factual basis if a NOD is not filed
within one year of the date of mailing of the notification of
the RO’s denial of the appellant’s claim. 38 U.S.C.A. § 7105
(West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1997).
When a claim is disallowed by the Board, the disallowance
becomes final unless the Chairman determines that
reconsideration is warranted, or another exception to
finality applies. Otherwise, no claim based upon the same
factual basis shall be considered. 38 U.S.C.A. §§ 7103, 7104
(West 1991); 38 C.F.R. § 20.1100 (1997).
While a claim that has been finally disallowed generally may
not thereafter be reopened and allowed, and a claim based on
the same factual basis may not be considered, 38 U.S.C.A. §
5108 sets forth an exception. Under this section, “[i]f new
and material evidence is presented or secured with respect to
a claim which has been disallowed, the Secretary shall reopen
the claim and review the former disposition of the claim.”
See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); 38
C.F.R. § 3.156(a) (1997). New evidence, when submitted to
reopen a claim, will be presumed credible solely for the
purpose of determining whether the claim has been reopened.
Justis v. Principi, 3 Vet. App. 510, 513 (1992). All
evidence submitted since the claim was finally disallowed on
any basis must be reviewed by the Board. See Evans v. Brown,
9 Vet. App. 273, 285 (1996). If the Board’s decision is
favorable to the veteran, his claim must be reopened and
decided on the merits. See Glynn v. Brown, 6 Vet. App. 523,
528-29 (1994).
Evidence is “new” when not of record at the time of the
last final disallowance of the claim and not merely
cumulative or redundant of other evidence that was then of
record. “Material” evidence must be probative to any
element of an issue that was a specified basis for the last
final disallowance. If the evidence is new and probative,
then, in light of all of the evidence of record, there must
also be a reasonable possibility that the outcome of the
claim on the merits would be changed. Evans, 9 Vet. App. at
283-84; see also Mintz v. Brown, 6 Vet. App. 277, 280 (1994);
Sklar v. Brown, 5 Vet. App. 140, 145 (1993); Cox v. Brown, 5
Vet. App. 95, 98 (1993); Manio v. Derwinski, 1 Vet. App. 140,
145 (1991).
In this case, where the veteran has contended that he
incurred a bilateral hearing loss disability as a result of
his active military service, the Board observes that the
April 1991 rating decision was the last decision in which the
claim that the veteran seeks to reopen was finally
disallowed. The Board has therefore considered all evidence
associated with the veteran’s claims file since April 1991
which pertains to the veteran’s hearing loss disorder, and
this evidence includes: (1) Naticoke Memorial Hospital
medical records, dated from February 1984 to April 1986; (2)
Peninsula General Hospital Medical Center (PGHMC) treatment
records, dated from August to September 1989; (3) a March
1994 VA audio examination report and April 1994 VA general
examination report; (4) a January 1998 private medical
statement from Craig N. Bash, M.D., with associated copies of
chapters from two books, entitled Diseases of the Inner Ear,
and Trauma; and (5) transcript of the veteran’s January 1998
Travel Board hearing. The Board observes that the veteran
submitted the statement from Dr. Bash, with associated copies
of chapters from two books, at his January 1998 Travel Board
hearing, along with a statement indicating that he was
waiving RO jurisdiction of this new evidence.
In reviewing the above evidence, the Board has observed that
all of the above evidence is new to the record. That is,
such evidence is not merely duplicative or cumulative of
other evidence of record. The Board further notes that the
March 1994 VA audio examination report confirms that the
veteran has a bilateral hearing loss disability.
Significantly, the January 1998 private medical statement
from Dr. Bash contains an opinion regarding the relationship
of the veteran’s bilateral sensorineural hearing loss
disability to service. In this statement, he opined that it
was “reasonably likely” that the veteran’s “extensive
exposure to acoustic trauma in combat caused his hearing loss
and tinnitus.”
The Board finds that Dr. Bash’s statement is probative of the
issue of whether the veteran has a current bilateral hearing
loss disability as a result of his claimed acoustic trauma
while serving as a mortarman in Korea, and this statement,
viewed in light of all of the evidence of record, presents a
reasonable possibility that the outcome of the veteran’s
claim on the merits would be changed. Evans, 9 Vet. App. at
283-84. The Board therefore finds that new and material
evidence has been submitted to reopen the veteran’s claim for
service connection for bilateral hearing loss. Having
reopened the veteran’s claim, the Board must now consider
this claim on the merits. See Glynn, 6 Vet. App. at 528-29.
In general, service connection may be granted for a
disability resulting from disease or injury incurred or
aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §
3.303(a). Additionally, if a condition noted during service
is not determined to be chronic, then generally a continuity
of symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b).
When, after careful consideration of all the evidence of
record, a reasonable doubt arises regarding service origin,
or any other point, such doubt will be resolved in favor of
the claimant. 38 C.F.R. § 3.102.
If an injury or disease was alleged to have been incurred or
aggravated in combat, such incurrence or aggravation may be
shown by satisfactory lay evidence, consistent with the
circumstances, conditions, or hardships of combat, even if
there is no official record of the incident. 38 U.S.C.A.
§ 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1997).
“Satisfactory evidence” is credible evidence. Collette v.
Brown, 82 F.3d 389, 392 (1996). Such credible, consistent
evidence may be rebutted only by clear and convincing
evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R.
§ 3.304(d). This provision does not establish a presumption
of service connection, but eases the combat veteran’s burden
of demonstrating the occurrence of some inservice incident to
which the current disability may be connected. Collette, 82
F.3d at 392; see Caluza v. Brown, 7 Vet.App. 498, 507 (1995)
(holding that § 1154(b) relaxes the evidentiary standards as
to the service incurrence requirement to ground a claim);
accord Russo v. Brown, 9 Vet.App. 46, 50 (1996). Therefore,
“[s]ection 1154(b) provides a factual basis upon which a
determination can be made that a particular . . . injury was
incurred . . . in service but not a basis to link
etiologically the [injury] in service to the current
condition.” Cohen v. Brown, 10 Vet.App. 128, 138 (1997),
(citing Libertine v. Brown, 9 Vet.App. 521, 524 (1996);
Caluza, supra).
For the purposes of service connection, impaired hearing will
be considered a disability when the auditory threshold in any
of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is
40 decibels or greater; or when the auditory thresholds for
at least three of the frequencies 500, 1000, 2000, 3000, or
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.
The Board notes that there is no direct evidence of record
which shows that the veteran incurred any acoustic trauma in
the service. The veteran and his representative, in their
statements, including those made at the January 1998 Travel
Board hearing before the undersigned member of the Board,
maintain that the veteran’s hearing loss resulted from
exposure to acoustic trauma while serving as a mortarman in
Korea. His service records show that his most significant
duty assignment in Korea was with a heavy mortar company and
infantry unit and that he had received a Bronze Service Star
and a Combat Infantryman’s Badge, indicating that he had
engaged in combat with the enemy.
As a combat veteran, the veteran’s own assertion
substantiates that he was exposed to acoustic trauma in the
service from having served in combat as a mortarman in Korea.
This evidence is consistent with the circumstances,
conditions, and hardships of the veteran’s occupation as a
mortarman with an infantry regiment, and thus, is sufficient
proof of exposure to acoustic trauma during service. See
38 U.S.C.A. § 1154(b); Caluza, supra.
As the veteran’s service medical records may have been
destroyed in the 1973 St. Louis fire, there is no evidence
indicating that the veteran was treated for hearing loss in
the service. Post-service, the veteran was first shown to
have a bilateral hearing loss disability, for VA purposes, in
a September 1987 private audiogram report from Donna J.
Clarkson. In the September 1987 private audiogram report,
the veteran’s pure tone thresholds, in decibels, are reported
as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
35
85
max
failed
max
failed
LEFT
20
40
no resp
at 90
no resp
at 90
no resp
at 90
No speech recognition scores, using the Maryland CNC Test,
are indicated.
A July 1988 private audiogram report from Aubrey C. Smoot
Jr., M.D., P.A., and an October 1988 VA audiological
evaluation, also reveal that the veteran had a bilateral
hearing loss disability for VA purposes.
Most recently, in a 1994 VA audio examination report, the
veteran was diagnosed with bilateral profound high frequency
sensorineural type hearing loss with impaired speech; the
veteran’s pure tone thresholds, in decibels, were reported as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
45
90
115
110
LEFT
20
45
110
115
115
Pure tone threshold levels averaged 90 decibels for the right
ear and 96 decibels for the left ear. Speech audiometry
revealed speech recognition ability of 56 percent, apparently
for both ears.
The Board also observes that Dr. Bash, in his January 1998
medical statement, indicated that, based on his review of the
claims file, “nothing in the history of this patient
suggests he was exposed to acoustic trauma of sufficient
intensity and duration to cause these problems (bilateral
sensorineural hearing loss and tinnitus), other than his
combat experience in Korea.” He further indicated that the
veteran’s and his wife’s statements are “consistent with
onset in the Army.” His impression was that the veteran had
bilateral high frequency sensorineural hearing loss. Dr.
Bash opined that the veteran’s hearing loss was “consistent
with that which would result from extensive exposure to loud
noise, such as experienced in combat for many hours and
extensively over a long period.” His concluding impression
was that it was “reasonably likely” that the veteran’s
“extensive exposure to acoustic trauma in combat caused his
hearing loss.”
In this case, the Board finds that the evidence is in
equipoise as to whether the veteran incurred bilateral
hearing loss in the service. While the veteran’s service
medical records cannot be evaluated as they were destroyed in
the 1973 St. Louis fire, the veteran has provided
satisfactory, credible lay evidence establishing a history of
acoustic trauma due to noise exposure in service. Further,
as the veteran has current diagnoses of bilateral hearing
loss, recognized as a disability for VA purposes, and Dr.
Bash, in his January 1998 medical statement satisfactorily
linked the current hearing loss disability to service, the
Board may reasonably conclude that the veteran’s exposure to
acoustic trauma in the service had an adverse affect on the
veteran’s hearing. This evidence raises a reasonable doubt
as to the incurrence of a bilateral hearing loss disability
caused by noise exposure in service. Accordingly, resolving
reasonable doubt in the veteran's favor, the Board concludes
that the veteran’s bilateral hearing loss disability is of
service onset. Hence, connection for bilateral hearing loss
is granted.
B. Bilateral Tinnitus
As a preliminary matter, the Board notes that the veteran’s
claim for bilateral tinnitus is well grounded within the
meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds
that he has presented a claim which is plausible and capable
of substantiation. The Board is also satisfied that all
relevant facts have been properly developed. No further
assistance to the veteran is required to comply with the duty
to assist as mandated by 38 U.S.C.A. § 5107(a).
In general, service connection may be granted for a
disability resulting from disease or injury incurred or
aggravated by service. 38 U.S.C.A. § 1110. Additionally, if
a condition noted during service is not determined to be
chronic, then generally a continuity of symptomatology after
service is required for service connection. 38 C.F.R. §
3.303(b).
When, after careful consideration of all the evidence of
record, a reasonable doubt arises regarding service origin,
or any other point, such doubt will be resolved in favor of
the claimant. 38 C.F.R. § 3.102.
One of the possible etiologies of tinnitus is acoustic
trauma. See 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1997).
The Board notes that there is no direct evidence of record
which shows that the veteran incurred any acoustic trauma in
the service. The veteran and his representative, in their
statements, including those made at the January 1998 Travel
Board hearing before the undersigned member of the Board,
maintain that the veteran’s tinnitus resulted from exposure
to acoustic trauma while serving as a mortarman in Korea.
His service records show that his most significant duty
assignment in Korea was with a heavy mortar company and
infantry unit and that he had received a Bronze Service Star
and a Combat Infantryman’s Badge, indicating that he had
engaged in combat with the enemy.
The veteran probably was exposed to acoustic traumawhile
serving in combat as a mortarman. This evidence is
consistent with the circumstances, conditions, and hardships
of the veteran’s occupation as a mortarman with an infantry
regiment, and thus, is sufficient proof of exposure to
acoustic trauma during service. See 38 U.S.C.A. § 1154(b);
Caluza, supra.
The post-service medical records first reflect tinnitus in
an October 1988 VA outpatient treatment record, at which time
the veteran was noted to experience constant tinnitus. In
hospital treatment reports from PGHMC, dated from August to
September 1989, the veteran reported chronic ringing or
buzzing of the ears since serving as an artilleryman in
Korean. On VA examination in March 1994, he reported
complaints of constant bilateral tinnitus since serving as a
mortarman in Korea. The impression was bilateral tinnitus.
Moreover, as indicated above, the Board observes that Dr.
Bash, in his January 1998 medical statement, opined that is
was “reasonably likely” that the veteran’s “extensive
exposure to acoustic trauma in combat caused his hearing loss
with tinnitus.”
In this case, the Board finds that the evidence is in
equipoise as to whether the veteran incurred bilateral
tinnitus in the service. While the veteran’s service medical
records cannot be evaluated as they were destroyed in the
1973 St. Louis fire, the veteran has provided satisfactory,
credible lay evidence establishing a history of acoustic
trauma due to noise exposure in service. Further, as the
veteran has current diagnosis of bilateral tinnitus and Dr.
Bash, in his January 1998 medical statement, satisfactorily
linked the current bilateral tinnitus disorder to service,
the Board may reasonably conclude that the veteran’s exposure
to acoustic trauma in the service caused the veteran’s
bilateral tinnitus. This evidence raises a reasonable doubt
as to the incurrence of bilateral tinnitus caused by noise
exposure in service. Accordingly, resolving reasonable doubt
in the veteran's favor, the Board concludes that the
veteran’s bilateral tinnitus is of service onset. Hence,
service connection for bilateral tinnitus is granted.
ORDER
Entitlement to service connection for bilateral hearing loss
is granted, subject to the laws and regulations governing the
payment of monetary benefits.
Entitlement to service connection for bilateral tinnitus is
granted, subject to the laws and regulations governing the
payment of monetary benefits.
BRUCE KANNEE
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
