Citation Nr: 0815118 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 07-07 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty service from March 1969 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In December 2007, the veteran appeared at a hearing at the RO before the undersigned. The issues of service connection for hearing loss (reopened) and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Service connection for hearing loss was denied in April 1978; notice of this decision was sent on April 17, 1978; and the veteran did not enter a notice of disagreement with that decision within one year of issuance of notice. 2. Evidence received since the April 1978 rating action relates to previously unestablished facts of current disability and relationship to acoustic trauma in service, and raises a reasonable possibility of substantiating the veteran's claim for service connection for hearing loss. 3. The veteran does not have COPD related to service. CONCLUSIONS OF LAW 1. The April 1978 rating action, denying service connection for hearing loss disability, became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160, 20.302, 20.1103 (2007). 2. New and material evidence has been received sufficient to reopen service connection for hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. The criteria for service connection for COPD have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in May 2006, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claims. In August 2006, the RO also notified the veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the requirements set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006) regarding new and material evidence claims have been met. The veteran has been notified of the evidence and information necessary needed to reopen his claim for service connection for hearing loss, to substantiate each element of the underlying service connection claim, and to substantiate the elements needed for service connection that were found insufficient in the prior denial on the merits. In any case, any deficiency under Kent would not preclude the Board from adjudicating the appellant's claim. This is so because the Board is taking action favorable to the veteran's new and material evidence claim. VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his claims. Thus, the duties to notify and assist have been met. Reopening Service Connection for Hearing Loss In a rating decision dated in April 1978, the RO denied service connection for hearing loss, and appears to have found (erroneously) that hearing loss was within normal limits at service separation, implying that there was still no current hearing loss disability, and that any current hearing loss had not been related to the acoustic trauma in service. The actual bases of denial are unclear, as the decision seems to imply, but does not actually find, that there was no current hearing loss disability. The cover letter to the rating decision indicated that the claim was denied because there was no evidence that hearing loss was incurred in service, and inconsistently implies that there is current hearing loss disability. Notice of the April 1978 rating decision was sent on April 17, 1978. The veteran did not enter a notice of disagreement with that decision within one year of issuance of notice. For this reason, the April 1978 rating decision denial of service connection for hearing loss became a final decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160, 20.302, 20.1103. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. The April 1978 decision became final because the veteran did not file a timely appeal. The claim for service connection for hearing loss may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The veteran filed this application to reopen his claim in February 2006. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence before VA at the time of the prior final decision in April 1978 consisted of the veteran's service medical records. The evidence showed that in service the veteran was treated for hearing problems in October 1971 and had wax removed. Service entrance audiological examination report dated in February 1969 shows some hearing loss. Audiological testing at the August 1972 service separation examination showed increased bilateral hearing loss at all the relevant Hertz decibel ranges 500 through 4000 as compared to service entrance. A December 1977 VA examination report did not test for hearing loss. The Board finds that the evidence received since the last final decision in April 1978 is not cumulative of other evidence of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim for service connection for hearing loss. The absence of current hearing loss disability appears to be one of the bases for the prior denial of service connection for hearing loss in April 1978. The newly received evidence includes VA and private treatment records and VA examination reports show that the veteran currently has bilateral hearing loss disability. The additional evidence also includes medical history and sworn personal hearing testimony showing continuity of symptomatology of hearing loss since service separation. This evidence tends to show a relationship of current hearing loss disability to service, another of the apparent bases for the April 1978 rating decision denial of service connection for hearing loss. This evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to unestablished facts of current disability and nexus to service necessary to substantiate the claim for service connection for hearing loss, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Accordingly, new and material evidence has been received, and the claim for service connection for hearing loss is reopened. Service Connection for COPD The veteran essentially contends that he now has COPD, and that his COPD is related to service. He testified at the personal hearing to having shortness of breath. When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). In this case, there is no evidence that the veteran currently has a diagnosed disability of COPD. On VA examination in February 2007, diagnoses of arterial sclerotic heart disease, status post angioplasty and stent, and essential hypertension were noted. Significantly however, there was no indication or diagnosis of COPD. Additionally, treatment records consistently noted that the veteran denied cough, wheeze, dyspnea, and dyspnea on exertion, and on examination the lungs were clear. Congress has specifically limited entitlement to service- connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwwinski, 3 Vet. App. 223, 225 (1992). Even if there was current evidence of COPD, service connection would nevertheless be denied. Service medical records are negative for any findings or complaints related to COPD. The examination report at service discharge showed a normal lung and chest evaluation. Additionally, there is no competent medical evidence which links COPD to service. Without evidence of a disability in service or a nexus between current disability and service, service connection would be still be denied. In adjudicating this claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Recently, in Barr v. Nicholson, 21 Vet. App. 303 (2007), the United States Court of Appeals for Veterans Claims (Court), citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this capacity, the Board finds the veteran is competent to attest to his observations of his disorder. Layno; 38 C.F.R. § 3.159(a)(2). However, as a lay person, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder (i.e. that he currently has COPD, or that COPD is related to service) because he does not have the requisite medical expertise. See, e.g., See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for COPD must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received to reopen service connection for hearing loss. To this extent, the appeal is allowed. Service connection for chronic obstructive pulmonary disease is denied. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The veteran essentially contends that his hearing loss and tinnitus are related to service, specifically to noise exposure around airplanes. His DD 214 confirms that he was a vehicle operator/dispatcher. While VA afforded the veteran an audiology examination in February 2007 for his service connection claim for hearing loss, the report did not address the etiology of his current hearing loss nor discuss tinnitus. On remand, the veteran should be afforded an examination determining the nature and etiology of any current hearing loss and tinnitus. Accordingly, the issues of service connection for hearing loss and service connection for tinnitus are REMANDED for the following action: 1. The RO should schedule the veteran for a VA audiology examination to determine the nature and etiology of his hearing loss and tinnitus. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (that is, whether there is a 50 percent or greater probability) that current hearing loss is related to established acoustic trauma in service. If tinnitus is found, the examiner should also provide an opinion as to whether it is at least as likely as not (that is, whether there is a 50 percent or greater probability) that current tinnitus is related to established acoustic trauma in service. The examiner should provide a rationale for any opinion expressed. 2. Thereafter, the RO should readjudicate the issues of service connection for hearing loss and service connection for tinnitus. All applicable laws and regulations should be considered. If the benefits sought on appeal remain denied, the veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2007). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs