Citation Nr: 1136851	
Decision Date: 09/29/11    Archive Date: 10/11/11

DOCKET NO.  06-35 932	)	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 sufficient to reopen a previously denied claim of entitlement to service connection for tinnitus; and if so, whether service connection is warranted.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

K. A. Kennerly, Counsel



INTRODUCTION

The appellant served on active duty from February 1946 to July 1947 and from March 1948 to March 1950.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA), which, inter alia, denied the appellant's petition to reopen his previously denied claim of entitlement to service connection for tinnitus and denied his claim of entitlement to service connection for bilateral hearing loss.  The appellant submitted a notice of disagreement with this determination in November 2008, and timely perfected his appeal in March 2009.

In August 2009, the Board denied these claims.  The appellant subsequently submitted a notice of appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his claims for tinnitus and bilateral hearing loss.  The Court issued a November 2009 Order vacating, in part, the August 2009 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand (JMR).  

In accordance with the JMR, the Board remanded the appellant's claims in April 2011 for further evidentiary development, to include obtaining a VA audiology examination.  After this development was completed, the claim was returned to the Board.  During this time period, the appellant submitted additional evidence in support of his claim without a waiver of agency of original jurisdiction consideration.  As the appellant is represented by a State representative, in compliance with regulation, the Board remanded the claims in July 2011 for review and readjudication of the appellant's claims.

With respect to the appellant's petition to reopen the previously denied claim of entitlement to service connection for tinnitus, to establish jurisdiction over this issue, the Board must first consider whether new and material evidence has been submitted to reopen the claim.  See 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010).  The Board must proceed in this fashion regardless of the RO's actions.  See Barnett v. Brown, 83 F.3rd 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92.  As discussed fully under the analysis section, new and material evidence has been submitted to reopen the claim.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  See 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The November 2004 rating decision denied the claim of entitlement to service connection for tinnitus.  The appellant did not appeal this decision.

2.  The additional evidence associated with the appellant's VA claims file since the November 2004 rating decision is not cumulative or redundant of evidence previously considered and by itself, and when considered with previous evidence, relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for tinnitus.

3.  The preponderance of the evidence supports a finding that the appellant's currently diagnosed tinnitus is the result of noise exposure during active duty service.

4.  The preponderance of the evidence supports a finding that the appellant's currently diagnosed bilateral hearing loss is the result of noise exposure active duty service.


CONCLUSIONS OF LAW

1.  The November 2004 rating decision, which denied entitlement to service connection for tinnitus, is final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 20.1103 (2010).

2.  New and material evidence has been presented sufficient to reopen the claim of entitlement to service connection for tinnitus.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104, 3.156 (2010).

3.  Tinnitus was incurred in active duty service.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2010).

4.  Bilateral hearing loss was incurred in active duty service.  38 U.S.C.A. § 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The appellant's claim of entitlement to service connection for tinnitus has been reopened and his claims for bilateral hearing loss and tinnitus have been granted, as discussed below.  As such, the Board finds that any error related to the VCAA on those claims is moot.  See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  New and Material Evidence

The appellant asserts that he has submitted new evidence sufficient to reopen his previously denied claim of entitlement to tinnitus.  The Board concurs.

Evidence Previously Considered

The appellant's original claim of entitlement to service connection for tinnitus was denied in a November 2004 rating decision, on the bases that the service separation examination of the appellant's ears and hearing was normal.  It was reported that the appellant had no serious injury and no illnesses.  No medical evidence was submitted to show that the appellant was diagnosed with tinnitus within one year of his discharge from military service, and there was no medical evidence to show that the appellant had a current diagnosis of tinnitus.

In a letter, dated in November 2004, the RO notified the appellant of the adverse determination and of his procedural and appellate rights.  The notice included the appellant's right to appeal the adverse determination by notifying the RO of his intention within one year from the date of the letter.

As the appellant did not indicate his disagreement within the time allotted, the rating decision by the RO in November 2004 became final by operation of law.  The claim may be reopened if new and material evidence is presented.  See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2010).

Current Claim to Reopen

In general, an unappealed rating decision is final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2010).  Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

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.  See 38 C.F.R. § 3.156(a) (2010).

An adjudicator must follow a two-step process in evaluating previously denied claims.  First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material.  If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits.  Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled.  See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).

In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In Shade v. Shinseki, 24 Vet. App. 110 (2010), however, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."

After reviewing the record, and for the reasons expressed immediately below, the Board is of the opinion that the appellant has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for tinnitus.  At the time of the RO's November 2004 rating decision, service treatment records were of record.  As noted above, the appellant's original claim was denied due to lack of evidence of tinnitus in service, within one year of discharge, and for lack of a current diagnosis.

Evidence added to the record since the November 2004 denial includes VA treatment records, private treatment records, and a VA audiological examination report.  Both the private treatment records and the VA audiological examination diagnosed the appellant with tinnitus, and the private treatment records provided a positive medical nexus between the appellant's tinnitus and his time in military service.

This evidence is not cumulative or redundant; it has not been submitted previously.  The evidence raises a reasonable possibility of substantiating the claim since, when considered with the old evidence, it triggers the Secretary's duty to assist.  See Shade, supra.  As the appellant has submitted new evidence consisting of a diagnosis of tinnitus and a medical nexus between service and the present condition, the claim of entitlement to service connection for tinnitus is reopened, and must be considered in light of all the evidence, both old and new.

III.  The Merits of the Claims

The appellant contends that he currently suffers from bilateral hearing loss and tinnitus as a result of his time in active duty service.  Specifically, the appellant alleges that his duties as an artillery recorder exposed him to acoustic trauma.

Governing Law and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110 (West 2002).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  See 38 C.F.R. § 3.303(b) (2010).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d) (2010).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

In addition to the above, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  See 38 C.F.R. § 3.303(d) (2010).  Furthermore, sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service.  See 38 C.F.R. §§ 3.307, 3.309 (2010).

With hearing loss claims, VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies 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 are less than 94 percent.  See 38 C.F.R. § 3.385 (2010).

Tinnitus has been variously defined.  It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane").  See Butts v. Brown, 5 Vet. App. 532, 540 (1993).  It is a noise in the ears, such as ringing, buzzing, roaring, or clicking.  See YT v Brown, 9 Vet. App. 195, 196 (1996).  It is a ringing, buzzing noise in the ears.  See Kelly v. Brown, 7 Vet. App. 471, 472 (1995).  "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin."  See 59 Fed. Reg. 17,297 (April 12, 1994).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  In this regard, the Court of Appeals for Veterans Claims (Court) has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, 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, 21 Vet. App. 303 (2007).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009)

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See 38 C.F.R. § 3.303(a) (2010); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Analysis

With respect to Shedden element (1), current diagnosis, the Board notes that during his March 2008 VA audiological examination, the appellant's measured puretone threshold values were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
60
55
65
75
75
LEFT
60
60
70
75
80

Thus, the appellant has a current diagnosis of bilateral hearing loss, for VA purposes.  Furthermore, the appellant was diagnosed with tinnitus.  Shedden element (1) has been satisfied.  See 38 C.F.R. § 3.385 (2010); see also Shedden, supra.

Review of the appellant's service records reveals that his Military Occupational Specialty (MOS) was listed as an artillery recorder.  See DD Form 214.  The Board is aware that the appellant's service treatment records are deemed to be lost due to the 1973 fire at the National Personnel Records Center.  Though there is no available evidence to establish complaints of bilateral hearing loss or tinnitus during the appellant's time in service, his MOS is consistent with his complaints of acoustic trauma in service.  Furthermore, the Board finds that the appellant is both competent and credible to report on the fact that he was exposed to loud noises during service and that he suffered from decreased hearing acuity and tinnitus since that time.  See Davidson, supra; Buchanan, supra; Jandreau, supra.  Therefore, the Board concedes that the appellant was exposed to loud noise during service.  Thus, Shedden element (2), in-service disease or injury, has been satisfied.  See Shedden, supra.

With respect to crucial Shedden element (3), nexus, the record contains medical evidence both for and against the claims.  The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).

In March 2008, the appellant participated in a VA audiological examination.  At that time, he reported difficulty hearing and understanding in all listening conditions.  He stated that he believed the cause of his hearing loss was connected to his military noise exposure.  There was a reported history of military noise exposure from artillery, aircraft, tanks, engines, and gunfire, without hearing protection.  There was also reported civilian noise exposure without hearing protection.  The appellant also reported that he frequently had severe tinnitus that began during active duty service.  He rated his tinnitus as a 4/5, with 5 being intolerable.  Puretone threshold values were noted above.

The VA examiner opined that without the record of a hearing test prior to military service, it could not be determined without resorting to speculation, whether the appellant's hearing loss and tinnitus began during military service.  There was also a history of noise exposure without the use of hearing protection in civilian life for the appellant.  No medical problem existed that, if treated, might cause a change in the hearing threshold levels.  See VA Audiological Examination Report, March 29, 2008.

VA sought an addendum to the March 2008 VA examination.  In May 2011, the same VA examiner noted that the appellant's service records were fire-related.  A copy of the appellant's March 1950 separation examination included Whispered Voice Test results of 15/15.  The examiner noted that the Whispered Voice Test was no longer used clinically because it was not sensitive to high frequency hearing loss.  It was noted that even assuming the appellant's hearing was normal upon his enlistment into the military, it could not be determined without speculation if his hearing loss occurred during military service without audiometric records to review.  The VA examiner also noted that the private treatment records (discussed below) submitted by the appellant, dated in July 2006, took place more than 40 years after the appellant's separation from military service.  Without an enlistment or discharge audiogram, determination of service connection for hearing loss and/or tinnitus could not be ascertained without resorting to speculation.  Further, the appellant's hearing loss was not inconsistent with aging.  The appellant had a self-reported history of unprotected civilian noise exposure, and the effects of this noise exposure could not be ruled out as a contributing factor to the current hearing loss and reported tinnitus.  See VA Audiological Examination Report Addendum, March 4, 2011.

The Board is aware of the holding in Hensley v. Brown, 5 Vet. App. 155, 158 (1993), which established that when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Based on the holding in Hensley, the Board does not find the March 2008 and May 2011 VA examiner's opinions to be probative.

In support of his claims, the appellant provided two private medical opinions.  In June 2006, he was seen by R.D.T., M.D., who stated that the appellant was seen as a new patient, with complaints of hearing loss and tinnitus.  He was accompanied by a family member who informed Dr. T. that the appellant was appealing a denial of disability from VA for hearing loss, even though he had noise exposure in the artillery.  An audiogram was performed, which revealed bilateral sensorineural hearing loss that was slightly worse in the left ear.  He had a mild to moderate low frequency loss which sloped down to a severe loss at 4000 decibels in the right ear.  In the left ear, he had a moderate hearing loss in the low to mid frequencies, which dropped to a severe to profound hearing loss in the left ear.  Speech reception threshold was 40 decibels on the right and 45 decibels on the left.  Discrimination was 80 percent in each ear.  The appellant was diagnosed with bilateral sensorineural hearing loss and tinnitus, secondary to sensorineural hearing loss.  See Private Treatment Record, R.D.T., M.D., July 31, 2006.

In June 2011, the appellant submitted a statement from B.C.W., M.D., which stated that the appellant had a diagnosis of bilateral sensorineural hearing loss.  This noise-induced hearing loss was considered more likely than not caused by the appellant's military service around artillery fire.  The appellant's tinnitus was also noted to be more likely than not caused by this noise exposure.  See Private Treatment Record, B.C.W., M.D., June 10, 2011.  In August 2011, the appellant submitted an addendum from Dr. W., which stated that he reviewed the appellant's VA claims file in addition to examining the appellant.  He reiterated his opinion that the appellant's bilateral hearing loss and tinnitus were the result of noise exposure during active duty service.  See Private Treatment Record, B.C.W., M.D. Addendum, August 3, 2011.

In the present case, the Board concludes that the evidence is at least in equipoise and entitlement to service connection for bilateral hearing loss and tinnitus must be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010).

Further, the Board notes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation.  See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Furthermore, the Board finds the appellant's claims regarding his having problems with tinnitus and bilateral hearing loss since shortly after his separation from active duty competent and credible evidence of continuity of symptomatology because the presence of these disorders is not a determination "medical in nature" and they are therefore capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra.

Therefore, with granting the appellant the benefit of any reasonable doubt in this matter, the Board concludes that service connection for tinnitus and bilateral hearing loss are warranted because the record contains medical evidence of a current disability, evidence of the in-service incurrence of an injury, and a nexus between the in-service injury and the current disabilities.  See 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010); Shedden, supra.


ORDER

The application to reopen the claim of entitlement to service connection for tinnitus, is granted, and, to that extent only, the appeal is granted.

Entitlement to service connection for bilateral tinnitus is granted.

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs