Citation Nr: 1303296 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 11-27 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. A September 2004 rating decision denied service connection for tinnitus, the Veteran did not appeal that decision in a timely manner, and no new and material evidence was submitted within the appeal period. 2. A March 2006 rating decision denied service connection for tinnitus, the Veteran did not appeal that decision in a timely manner, and no new and material evidence was submitted within the appeal period. 3. Evidence received since the time of the final March 2006 rating decision raises the reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for tinnitus. 4. There is competent evidence that relates the Veteran's current tinnitus to active duty. CONCLUSIONS OF LAW 1. The September 2004 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. The March 2006 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 3. Evidence submitted to reopen the claim of entitlement to service connection for tinnitus is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 4. Tinnitus was incurred during active duty. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for tinnitus, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A(f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, service connection for certain chronic diseases, including tinnitus, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). New evidence means existing evidence not previously submitted to VA. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b); Bond v. Shinseki , 659 F.3d 1362 (Fed. Cir. 2011). Here, the Veteran did not submit any new and material evidence within the year following the September 2004 rating decision, nor did he file a timely appeal to the September 2004 rating decision. Therefore, it is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). Likewise, the Veteran did not submit any new and material evidence within the year following the March 2006 rating decision, nor did he file a timely appeal to the March 2006 rating decision. As such, it is also final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). In a December 2009 rating decision, the RO reopened and denied the Veteran's claim for service connection for tinnitus. Although the RO found that new and material evidence had been submitted to reopen the Veteran's claim of entitlement to service connection for tinnitus, RO decisions are not binding on the Board and, consequently, the Board must first decide whether new and material evidence has been received to reopen the Veteran's claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). Here, the basis for the March 2006 denial was the RO's finding that the evidence of record did not relate the Veteran's current tinnitus to his active duty. Thus, in order for the Veteran's claim to be reopened, new evidence must have been added to the record since the March 2006 rating decision that addresses this basis. Evidence submitted and obtained since the March 2006 rating decision includes a letter dated in November 2010 from a private physician who opined that the Veteran's tinnitus was more likely than not related to his military noise exposure. This evidence is both "new," as it had not been previously considered by VA, and it is "material" as it addresses the basis on which the Veteran's claim was previously denied. As new and material evidence to reopen a finally disallowed claim has not been submitted, the claim is reopened. Merits of the Claim The Veteran contends that he has constant ringing in his ears as the result of noise exposure during active duty. In various written statements, he describes his in-service duties as a cannoneer firing 105 millimeter artillery and a M60 machine gun. He reports being constantly exposed to artillery fire on missions and mortar attacks during the day and at night while sleeping. The Veteran states that although hearing protection was provided during training, he does not remember being supplied with any hearing protection during his tour in Vietnam. Since service, the Veteran reports working in a factory with hearing protection. In addition, he also reports that he uses a Walker Game Ear that shuts down at the report of his hunting weapon and always wears hearing protection while using yard equipment or power tools. The Veteran states that he has experienced tinnitus continuously since service, which has worsened over time. Additionally, the Veteran and his representative assert his current tinnitus is related to his service-connected bilateral hearing loss. In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service treatment records are negative for any complaints of, treatment for, or diagnosis of tinnitus. However, the Board finds it noteworthy that although a whisper voice test was performed, the Veteran was not provided a separation audiological examination. As a result, it remains somewhat unclear as to whether the Veteran experienced any hearing loss or problems at the time of separation from service. Private treatment records dated in February 2003 from the Veteran's employer indicate noise damage had resulted in ringing of the ears, and in particular, ringing in the left ear. In his March 2004 service connection claim, the Veteran asserted his tinnitus was the result of exposure to noise during active duty. He reported serving with the artillery in Vietnam and that since service, he had experienced reduced hearing and a constant ringing in his ears. In a July 2004 written statement, the Veteran asserted that he had a constant ringing in his left ear and a noticeable loss of hearing. The Veteran underwent VA examination in July 2004 in connection with his claim. The record reflects that he described constant, moderate tinnitus in his left ear and reported that he first noticed the symptoms approximately five years prior to the examination. The VA examiner noted the Veteran had a long history of noise exposure during both military and civilian life. However, because the Veteran reported that his tinnitus began many years after separation from service, and the Veteran had no opinion as to what caused his symptoms, the VA examiner found the Veteran's current tinnitus was not as likely as not related to his military service. In support of his claim, the Veteran submitted a November 2010 letter from a private physician. The private physician reported that he had reviewed the Veteran's military records, to include the examinations performed upon his induction to service and separation from service, and his lay statements regarding noise exposure during and after active duty. The private physician also noted the Veteran's reports that his tinnitus began in the late 1970s. The private physician found it significant that histopathology literature documented that outer hair cell damage in the cochlea occurs prior to an individual ever showing a threshold shift on an audiogram. In addition, the private physician reported that according to the American College of Occupation and Environmental Medicine, noise exposure without the use of hearing protection can cause and/or contribute to noise-induced hearing loss, acoustic trauma, and tinnitus in individuals. Further, medical treatises indicated that the cause of tinnitus can usually be determined by the finding of the cause of any co-existing hearing loss. Dennis L. Kasper et al., Harrison's Principles of Internal Medicine (16th ed. 2005). Based on the history provided and the results of a June 2004 VA audiological examination, the private physician opined that the Veteran's hearing loss and tinnitus were more likely than not related to his military noise exposure. On VA examination in January 2012, the Veteran described constant ringing in the left ear that began in the 1990s. The record indicates the Veteran reported in-service exposure to excessive noise in the form of machine guns, M60 rockets, and mortars. He also described a history of civilian occupational noise exposure with the use of hearing protection most of the time and a history of civilian recreational noise exposure in the form of weaponry used while hunting. The VA examiner stated that to offer an opinion would require resorting to speculation as the claims file was not available for review. In June 2012, the Veteran underwent an additional VA examination in connection with his claim. The VA examiner reviewed the Veteran's claims file, to include the service treatment records and private treatment records. The VA examiner noted that although the Veteran had filed claims for other disabilities in 1991, he had not filed a claim for tinnitus, and therefore the VA examiner reasoned that the Veteran was not experiencing tinnitus symptoms at that time. The VA examiner further observed that the Veteran had provided inconsistent reports regarding the onset of his symptoms; whereas the private physician indicated the Veteran's tinnitus began in the late 1970s, on both the July 2004 VA examination and the January 2012 VA examination, the Veteran had reported his tinnitus began in the 1990s, significantly after his separation from service. The VA examiner opined that when conflicting onset dates are reported, the assumption is that the first is the most accurate. Therefore, it was the VA examiner's opinion that it was less likely than not that the Veteran's tinnitus was caused by or a result of military service. Because the June 2012 VA examiner did not address the Veteran's contentions regarding a relationship between his service-connected bilateral hearing loss and his current tinnitus, the Veteran's claims file was provided to an additional VA examiner in August 2012 to obtain an opinion regarding this issue. The VA examiner reviewed the claims file and noted the previous examinations and the private physician's opinion. The VA examiner stated that although hearing loss and tinnitus were commonly present together, they were not necessarily mutually occurring. In addition, the VA examiner found hearing loss and tinnitus had varying causes, to include certain medications, stress, anxiety, nicotine, sodium, and excessive caffeine. The VA examiner opined that hearing loss does not cause tinnitus or vice versa, and therefore, it was less likely than not that tinnitus was secondary to hearing loss. In November 2012, the Veteran's representative argued that the August 2012 VA examiner's opinion was inadequate as it failed to consider that the Veteran's tinnitus could not equally be caused by his service-connected bilateral hearing loss as opposed to the other possible causes of tinnitus. The Veteran's representative cited the Merck Manual and asserted tinnitus may occur as a symptom of nearly all ear disorders, including sensorineural noise-induced hearing loss. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Although tinnitus was not shown or reported during active duty, the Board concedes exposure to acoustic trauma as the Veteran's descriptions of his noise exposure are consistent with his circumstances of service and are competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). In this respect, the Veteran's DD-214 reflects that his military occupational specialty was cannoneer, which corroborates his reports of his in-service duties. Additionally, the Veteran earned the Army Commendation medal with "V" device, indicating he participated in combat during active duty. Furthermore, the RO has already conceded such exposure in a May 2012 rating decision that granted service connection for bilateral hearing loss. Accordingly, the Board finds the Veteran has established an in-service event for the purpose of service connection. The Veteran asserts that he has experienced ringing in his ears since the established in-service acoustic trauma. Such lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. at 469. In addition, 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). The presence of tinnitus is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, the Board finds the Veteran has established a current disability. With evidence of a current disability and an in-service event, the remaining element required to establish service connection is a nexus between the current disability and the in-service event. First, the Board notes that the record does not show the Veteran reported tinnitus symptoms until the submission of his initial claim in March 2004, approximately 33 years after his separation from service. As such, service connection for tinnitus cannot be granted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Further, this prolonged period without complaints or treatment is evidence for consideration in determining continuity of symptomatology and weighs against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Nevertheless, during the pendency of this appeal, the Veteran asserted that he experienced tinnitus since active duty. "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303. Accordingly, the Board will consider the lay evidence submitted by the Veteran regarding his audiological symptoms during and since active duty as well as the medical opinions of record. Here, there are conflicting medical opinions of record regarding a nexus between the Veteran's current tinnitus and active duty service. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102 (2012). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds the July 2004 VA examiner's opinion less probative with respect to a nexus between the Veteran's current tinnitus and his active duty service. Here, the VA examiner appears to have based the opinion primarily on the Veteran's reports regarding the onset of tinnitus five years prior, which was not consistent with the Veteran's assertions in his March 2004 claim and his subsequent written statements provided throughout the pendency of the appeal. Also, the rationale for the VA examiner's opinion does not appear to include consideration of the Veteran's reported noise exposure during and after active duty and does not provide an alternative etiology for the Veteran's tinnitus. Furthermore, the VA examiner based the opinion on the Veteran's inability to provide an etiology for his tinnitus symptoms. In this respect, the purpose of the examination was to have a medical physician provide a competent opinion regarding the etiology of the Veteran's disability, and therefore the examiner's reliance on the lack of etiology provided by the Veteran is inappropriate and renders the opinion inadequate. Conversely, the Board affords the private physician's November 2010 opinion significant probative value. First, the record indicates the opinion was based on a review of the Veteran's medical records and specifically cites the Veteran's induction and separation examinations. The record also indicates the private physician took into consideration the Veteran's reports of noise exposure during and after active duty and his reports of symptoms following service. In this respect, the Board notes that the Veteran reported first noticing symptoms in the late 1970s, which again contradicts his statements that he experienced tinnitus since active duty. However, the private physician also supported the opinion with references to histopathology literature and medical treatises, and he provided specific sources for the information cited. As such, the Board finds the November 2010 private physician's positive opinion persuasive with regard to a nexus between the Veteran's current tinnitus and his in-service noise exposure. With respect to the January 2012 VA examination, the Board finds the examiner's findings are inadequate for the purpose of determining service connection. First, the VA examiner reported that the claims file was unavailable for review. The Court has held that a failure to review the claims file renders a VA examination inadequate for rating purposes. See, e.g., Proscelle v. Derwinski, 2 Vet. App. 629, 932 (1992) ("The [VA] examiner should have the Veteran's full claims file available for review."). Furthermore, the VA examiner did not offer a nexus opinion but stated that providing an opinion without a review of the claims file would require resorting to speculation. In this respect, the Court has held that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010). As such, the Board finds the January 2012 VA examination inadequate for the purpose of adjudicating the issue on appeal. The Board also affords less probative value to the June 2012 VA examiner's opinion. Although the VA examiner discussed the Veteran's inconsistent reports regarding the onset of his tinnitus and the submission of additional disability claims prior to the Veteran's claim for tinnitus, the VA examiner did not address the Veteran's history of noise exposure and any possible relationship between tinnitus and acoustic trauma. The Board also finds it significant that the VA examiner did not provide any alternative etiologies for the Veteran's current tinnitus but rather provided a general statement founded on the inconsistency of the Veteran's reports. The Board also finds the August 2012 VA examiner's opinion less probative than the November 2010 private physician's opinion. Here, although the VA examiner suggested alternative etiologies for tinnitus, she did not provide an opinion on the specific circumstances pertaining to the Veteran's claim. Rather, the VA examiner focused on general principles regarding the connection between hearing loss and tinnitus and did not address the Veteran's personal history of in-service and post-service noise exposure and incurrence of bilateral hearing loss. See Libertine v. Brown, 9 Vet. App. 521, 523 (1966) (finding that generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus between current disability and military service). As such, the Board finds the August 2012 VA examiner's negative opinion carries less probative weight with respect to a nexus between the Veteran's tinnitus and his in-service noise exposure. Finally, the Board acknowledges that the evidence regarding whether the Veteran's tinnitus was incurred in active duty is conflicting. However, given the Veteran's in-service noise exposure and resulting hearing problems, as well as the November 2010 private physician's opinion and the written statements in support of his claim, the Board finds the evidence is at least in relative equipoise. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds the Veteran's current tinnitus was incurred in active duty. Therefore, service connection for tinnitus is warranted. Gilbert, 1 Vet. App. at 53-56. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs