Citation Nr: 1300422 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-28 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a final disallowed claim for service connection for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to December 1979. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office. In a July 2009 substantive appeal, the Veteran requested a hearing before the Board sitting at the RO. He withdrew the request in writing in April 2011. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. In May 1981 and in October 1997, the RO denied service connection for a right ear disorder and for tinnitus respectively. The Veteran did not express timely disagreement, and the decisions became final. 2. Since May 1981 and October 1997, evidence has been received that is in part new, not cumulative, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen a final disallowed claim for service connection for tinnitus. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a), 4.13, 4.125, 20.302 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a petition to reopen a final disallowed claim, VA must notify a claimant of the evidence and information that is necessary to reopen a previously denied claim, and must notify the claimant of the evidence and information that is necessary to establish entitlement to service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). In December 2007, the RO provided a notice that met the requirements. The notice informed the Veteran of the reason for a previous denial of service connection for tinnitus, the requirement for new and material evidence to reopen the claim, all criteria to substantiate a claim for service connection, and the Veteran's and VA's respective responsibilities to obtain additional relevant evidence. Moreover, as the Board is granting the petition to reopen the claim, any notice error regarding those criteria is not prejudicial to the Veteran. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The Veteran served in the U.S. Navy. He graduated from two submarine training courses but was not assigned to submarine duty. He later served as a linguist performing intelligence duties. He contends that he experiences tinnitus that was caused by ear and acoustic trauma in service. Service personnel records showed that the Veteran successfully completed basic submarine school and basic electronics training for a submarine missile system. For reasons not shown in the records, the Veteran then completed foreign language training and performed intelligence related duties for the remainder of his active duty. There is no indication that he served aboard a submarine. Service treatment records showed that the Veteran experienced difficulty equalizing middle ear pressure during a submarine physical examination in April 1975. The test incrementally exposed the examinee to air pressure equivalent of sea water depth of 100 feet, approximately 50 pounds per square inch. The examiner noted that failure to equalize was considered a disqualifying physical standard but recommended a waiver. Four days later, a clinician noted a barotrauma TEED Category 4 condition of both tympanic membranes indicating extensive middle ear hemorrhage but not a membrane rupture. The Veteran was treated with decongestant medication. Two days later, a clinician noted that the Veteran was able to equalize pressure, and his training record showed that he passed the pressure test. The Veteran continued submarine escape training but did not pass a functional part of the exercise. Two weeks later, a clinician noted TEED category 2 on the right and 1 on the left, indicating improvement but with some congestion. In May 1975, a physician noted that both tympanic membranes were normal with only some residual nasal congestion. Although it is not clear whether the Veteran later passed any additional escape training, he was transferred to follow-on submarine training school. The remainder of the service treatment records showed that the Veteran was treated for nasal congestion, earache, and otitis media in October 1977, December 1977, and February 1978. On each occasion, a clinician noted that the infection resolved with medication. In a December 1979 discharge examination, the Veteran reported that he experienced a history of ear, nose, and throat trouble, but the examiner noted no current abnormalities. In December 1980, the Veteran submitted a claim for service connection for a right ear disorder. In January 1981, a VA examiner noted the Veteran's report of ringing in his left ear and pain in the right ear. The examiner note normal tympanic membranes and did not diagnose any organic ear or hearing acuity disorder. In May 1981, the RO denied service connection for a right ear disorder because the symptoms caused by the pressure test and the recurrent ear and nasal infections in service resolved with treatment and because examiners noted no abnormalities on the discharge physical or on the VA examination. The Veteran did not express disagreement, and the decision became final. 38 U.S.C.A. § 7105. Records of the award of disability benefits by the Social Security Administration have been recovered and associated with the claims file. The records are silent for any symptoms, diagnoses, or treatment for tinnitus or other ear and hearing disorders. In June 1997, the Veteran underwent a VA hearing and ear examination. In a very brief report, a VA audiologist incorrectly noted that the Veteran served in submarine duty for four years. The Veteran reported no sensation of hearing loss but occasional high pitched sounds without dizziness. The audiologist referred to an April 1997 audiometric test that showed normal hearing bilaterally except for a minimal high frequency loss in the right ear. The audiologist noted a normal organic ear examination. In October 1997, the RO declined to reopen a final disallowed claim for a right ear disorder and denied service connection for tinnitus. The RO concluded that the evidence regarding an organic disorder of the right ear was cumulative of that previously considered and that there was no evidence of the onset of tinnitus in service or any event of acoustic trauma or head injury in service. The Veteran did not express timely disagreement, and the decision became final. 38 U.S.C.A. § 7105. The RO received the Veteran's petition to reopen a claim for service connection for tinnitus in May 2007. The Veteran noted that his last examination was ten years earlier and that he was experiencing bilateral ear pain, hearing loss, and ringing in both ears. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is existing evidence not previously submitted to agency decision makers. Material evidence is 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Approximately two weeks prior to the date of the petition to reopen the claim, the Veteran underwent a VA audiometric evaluation. The audiologist noted the Veteran's reports of decreased hearing acuity on the right with tinnitus. The Veteran also noted that he was receiving treatment for a sinus disorder. The audiologist removed cerumen from both ears and noted normal ear canals. Concurrent audiometric tests showed normal hearing bilaterally except for moderate hearing loss at 8000 Hz in the right ear. Tympanometry showed a hypermobile membrane on the right and normal function on the left. The audiologist did not comment directly on the symptoms of tinnitus or its origin. In March 2008, the RO declined to reopen the final disallowed claim for service connection for tinnitus because the only evidence received since October 1997 was the May 2007 VA evaluation. Although new, the RO found that the evidence was not material because it did not address the onset of symptoms or the incurrence of an injury or ear disorder in service, the reason for the previous denial. In an April 2008 notice of disagreement, the Veteran again reported his current symptoms of tinnitus and referred generally to the history of his claim and his military occupation. The RO continued to decline to reopen the claim in a July 2007 statement of the case, and the Veteran perfected a timely appeal. The Veteran submitted an additional written statement in August 2007 and did not waive initial consideration by the RO. The Veteran described the circumstances and symptoms of the submarine school pressure test and that he experienced the sensation of buzzing noises in his ears for several weeks. He did not discuss the evidence that showed that he later passed the test and that the symptoms resolved. He further reported that he was temporarily assigned to a submarine repair ship in the summer of 1975 awaiting the start of another training course. He reported that during this temporary duty he was sent below decks to a storeroom where he heard several sonar transmissions from a submarine mooring alongside. He noted that he could not hear and was about to faint from the pain and heat in the room. He noted that he did not seek treatment because his supervisor was not authorized to send him to that storeroom. In April 2011, the Veteran submitted additional evidence with a waiver of consideration by the RO. The evidence is a photocopy of a bottle of a dietary supplement advertised to "improve circulation in the inner ear." The Veteran noted that the supplement was provided by a private ear, nose, and throat specialist for the treatment of tinnitus, but he did not identify the specialist or authorize VA to obtain any clinical records. Also in April 2011, the Veteran withdrew his request for a hearing before the Board and requested that his claim be forwarded to the Board for review. The Board concludes from this statement that the Veteran waived RO consideration of all the evidence he submitted including his August 2007 and April 2011 statements. Evidence received since the last disallowed claim in October 1997 consists of the following: a May 2007 VA audiometric evaluation; the Veteran's August 2007 statement; and the label from the dietary supplement. The August 2007 statement that described the submarine school pressure test is not new as this event was documented in detail in the service treatment records and was previously considered. The 2007 examination report, Veteran's statements, and label are new because they were not previously considered. The VA evaluation and the dietary supplement label are not material to the reason for the previous denial because they are cumulative of the June 1997 VA evaluation that showed that the Veteran experienced tinnitus. The existence of a current tinnitus disability was considered in the last disallowance of the claim. The Veteran's report and description of a second event aboard a submarine repair ship is new and material because it had not been previously considered and relates to an event and symptoms of the disorder in service. As this evidence must be presumed credible, the Board concludes that new and material evidence has been received and, to this extent only, the Board grants the petition to reopen the claim and remands the appeal for further development. ORDER A petition to reopen a final disallowed claim for service connection for tinnitus is granted. REMAND VA must provide a medical examination of obtain an opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, there is competent and credible lay and medical evidence that the Veteran currently experiences tinnitus, service record and statements from the Veteran of two relevant events in service, and the Veteran's suggestion that his current tinnitus was caused by one or both events. Although the Veteran's hearing acuity and tinnitus symptoms have been evaluated by VA audiologists, there is no competent medical opinion on the relationship, if any, between the current symptoms and the two events in service. Therefore, the low threshold for an examination has been met. Accordingly, the case is REMANDED for the following action: 1. Request all records of VA outpatient treatment since June 2003 and associate any records received with the claims file. 2. The RO should ask the Veteran to identify all private medical providers who have treated him for a tinnitus or a hearing loss disability, not already associated with the claims file. After securing any necessary release, the RO should obtain medical records from all sources identified by the Veteran. To the extent there is an attempt to obtain records that is unsuccessful; the claims folder should contain documentation of the attempts made. The Veteran and his representative should also be informed of the negative results. 3. Then, schedule the Veteran for a VA organic ear and hearing acuity examination. A single examination is acceptable if the examiner is qualified to assess both hearing acuity and organic ear disease. Request that the examiner review the claims file and note the review in an examination report. The examiner's attention is directed but not limited to the service personnel and treatment records associated with submarine pressure testing, subsequent ear symptoms and treatment, and the end of service physical examination. a. Request that the examiner provide a current diagnosis. b. Assuming that on one occasion the Veteran heard sonar transmissions from a submarine moored next to his repair ship and in view of the records of an initial failure, treatment, and subsequent successful pressure test, was the Veteran's current tinnitus disorder caused or aggravated by one or both events in service with either a continuity of symptoms after service or a delayed onset caused by the events. c. If a definitive opinion cannot be provided, the examiner must explain the reasons such as insufficient credible information, shortcomings in the state of medical knowledge in this field, or lack of experience or training of the examiner. 4. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claim for service connection for tinnitus. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the appellant and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purpose of this remand is to assist the appellant with the development of his claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs