Citation Nr: 1306207 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 12-31 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether there is new and material evidence to reopen a claim for service connection for bilateral hearing loss. 2. Whether there is new and material evidence to reopen a claim for service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marines Corps from March 1954 to May 1957. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Board granted a motion to advance this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In this decision the Board is reopening these claims because there is new and material evidence since the Board's prior, final and binding, August 2010 decision initially considering and denying these claims. But rather than immediately readjudicating these claims on their underlying merits, the Board instead is remanding them to the RO via the Appeals Management Center (AMC) for further development and consideration. FINDINGS OF FACT 1. The Board denied service connection for bilateral hearing loss and tinnitus in an August 2010 decision and appropriately notified the Veteran, but he did not appeal that decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). 2. Additional evidence since received, however, is not cumulative or redundant of the evidence already of record and considered in that decision, relates to an unestablished fact necessary to substantiate these claims, and raises a reasonable possibility of substantiating them. CONCLUSIONS OF LAW 1. The August 2010 Board decision denying service connection for bilateral hearing loss and tinnitus is final and binding based on the evidence then of record. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. But there is new and material evidence since that decision to reopen these claims. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claim Assistance Act (VCAA) As provided by the VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, and 3.326(a) (2012). In this decision, because there is new and material evidence, the Board is reopening the Veteran's claims for service connection for bilateral hearing loss and tinnitus. But rather than immediately readjudicating these claims on their underlying merits, the Board instead is remanding them for further development and consideration. Thus, a discussion of VA's duties to notify and assist is unnecessary at this juncture. This is better determined once the additional development of the claims is completed on remand. Moreover, the Board need not discuss whether the Veteran received the type of notice contemplated by Kent v. Nicholson, 20 Vet. App. 1 (2006), including especially in terms of apprising him of the evidence necessary to substantiate the element or elements of these claims that were found insufficient in the previous denial. Kent, 20 Vet. App. at 10-11; see also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). This is because the Board is reopening these claims, regardless, so irrespective of any Kent concerns. Analysis - Reopening of the Claims Service connection is granted for current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent and credible evidence showing: (1) the existence of a present disability or, at the very least, showing the Veteran has had the alleged disability at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and, (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108. Evidence is new if it has not been previously submitted to agency decision makers. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or 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 Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Madden v. Gober, 125 F.3d 1477, 1481 (1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). But see, too, Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). VA also does not have to presume credible evidence offered that is inherently false or untrue, or if it is in the nature of a statement or other assertion that is beyond the competence of the person making the assertion. See Robinette v. Brown, 8 Vet. App. 69 (1995). New and material evidence is also necessary to reopen a claim for the same benefit asserted under a different theory of entitlement, so the mere fact that a Veteran alleges different theories of entitlement, from those previously alleged, does not obviate the need to have new and material evidence to reopen his claim. Robinson v. Mansfield, 21 Vet. App. 545 (2008); Roebuck v. Nicholson, 20 Vet. App. 307 (2006); and, Bingham v. Principi, 18 Vet. App. 470 (2004). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service-connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The lower Veterans Court (CAVC) has determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively - after there has been a finding of fact based upon competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009). In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding claimants from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the Court determined that the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. So in determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries or whether the evidence substantiates an element of a previously adjudicated matter. See Velez v. Shinseki, 23 Vet. App. 199 (2009). New arguments based on the same evidence of record at the time of the previous final and binding denial do not constitute the presentation of new and material evidence. See Untalan v. Nicholson, 20 Vet. App. 467 (2006). When determining whether there is new and material evidence, VA adjudicators need only to look back to the last final and binding denial of the claim, regardless of the specific basis of that denial, so irrespective of whether it was a prior denial on the underlying merits or, instead, a prior petition to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any favorable decision as to this matter which may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). In this particular case at hand, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus in August 2010 because there was no competent and credible evidence then of record showing the Veteran had these claimed conditions (that is, present disability because of them), nor was there evidence showing a relationship between these for all intents and purposes nonexistent conditions and his active military service. The Board's decision explained this, so there was sufficient information for the Veteran to understand that he would not be awarded benefits for these claims, inasmuch as he had not established any then-current disabilities as a result of an incident in service. On August 3, 2010, the Board notified him of that decision, and he did not file an appeal to the Court in response. Therefore, that August 2010 Board decision is final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. At the time of that earlier decision, the evidence of record included the Veteran's lay statements, service treatment records (STRs), two VA examination reports, and private medical records. In his statements, he asserted that he had sustained acoustic trauma during his service from repeated exposure to excessively loud noise, that he was not given hearing protection, and that he had experienced hearing loss and tinnitus ever since his service. His STRs revealed no complaints or diagnoses during his service, however, and his hearing acuity was evaluated as normal at time of separation from service. The VA examination reports did not contain opinions regarding his then current diagnoses or the etiology of any diagnosed conditions because he had impacted wax at the first examination and had failed to follow the instructions at the second examination. The private medical records pertained to other ailments and did not address hearing loss or tinnitus. In the 21/2 or so years since that August 2010 Board decision, new and material evidence has been received concerning these claims. The Veteran had another VA examination in January 2011, at the conclusion of which hearing loss and tinnitus were diagnosed. So there is now the required evidence at least confirming he has these claimed conditions. And as concerning etiology, he also obtained a supporting statement from a private physician, in April 2011, who opined that the hearing loss and tinnitus were related to the Veteran's military service. So there now also is suggestion of attribution of these conditions to his service. Both of these records pertain to elements of service connection that were not shown by the previous evidence of record, and they support a possible relationship between his claimed disabilities and service. But see Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (the post-VCAA version of the governing VA regulation, 38 C.F.R. § 3.156, does not require the submission of new and material evidence as to each previously unproven element of a claim to be reopened; that is, the evidence does not have to be new, material, and raise a reasonable possibility of substantiating the claim). It is also worth reiterating the credibility of this evidence is presumed, albeit just to determine whether it is new and material. See Justus, 3 Vet. App. at 512-513. As this additional evidence is new and material, the claims of entitlement to service connection for bilateral hearing loss and tinnitus are reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence having been received, the claims of entitlement to service connection for bilateral hearing loss and tinnitus are reopened. The appeal of these claims is granted to this extent only. REMAND As already alluded to, the Veteran attributes his hearing loss and tinnitus to repeated exposure to loud noise during his military service. The claims must be further developed, however, before being decided on their underlying merits. The Veteran is not competent to determine he has sufficient hearing loss to be considered a ratable disability according to the threshold minimum VA standards defined by 38 C.F.R. § 3.385. But he is competent to attest to experiencing hearing loss (difficulty hearing) since this is within his personal sense and perception. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Further, tinnitus is "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1956 (31st ed. 2007). Since tinnitus is inherently subjective, he is competent, even as a layman, to proclaim having had it during his service and during the years since. Barr v. Nicholson, 21 Vet. App. 303 (2007). See also Charles v. Principi, 16 Vet. App. 370 (2002) ("ringing in the ears is capable of lay observation"). Importantly, the RO has conceded that he had the type of noise exposure claimed while in service. So the determinative issue is whether his hearing loss and tinnitus are attributable to that noise exposure during his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). As mentioned, the Veteran a VA compensation examination in January 2011, at the conclusion of which the examiner seemingly determined that neither the hearing loss nor tinnitus was attributable to noise exposure during the Veteran's military service. However, the opinion is in ways inherently contradictory, especially in relation to other statements in the examination report. It therefore is inadequate for rating purposes, and in this circumstance it is incumbent on the Board to return the report for clarification. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). With regards to the opinion pertaining to the Veteran's tinnitus, the VA examiner noted that the Veteran's ears were normal upon entrance and separation from service, that his STRs contained no complaints or treatment for tinnitus, and that he reported to her that he had experienced the symptoms of tinnitus since service. She ultimately determined, however, that it was "not at least as likely as not" that his tinnitus was related to his service. It appears that her underlying rationale for this unfavorable opinion rests primarily, if not entirely, on the absence of any explicit mention of tinnitus in the STRs. She apparently did not consider the Veteran's lay statements of having supposedly experienced the symptoms of this condition continuously during and since service (continuity of symptomatology). See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). In discounting the Veteran's statements, the VA examiner essentially made a finding that his statements were not credible. However, lay statements may not be disregarded, or found not credible, simply because they are unaccompanied by supporting medical evidence such as actual treatment records (STRs, etc.). See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, as the trier of fact, it is the Board's obligation, not the VA examiner's, to weigh the evidence and, in so doing, determine whether the Veteran is credible. See Madden v. Gober, 125 F.3d 1477, 1481 (1997). With regards to the opinion pertaining to the hearing loss, the VA examiner noted that the Veteran's level of hearing loss is not consistent with the expected degree of loss for his age or for someone whose military occupational specialty (MOS) was reciprocating engine mechanic. She opined that it was "less likely as not" the hearing loss was related to his service. The rationale for her opinion is unclear, however, in that she does not state whether the Veteran's hearing is better or worse than what would be expected for his age, or how his deviation from that expectation decreases the possibility that his hearing loss is related to his service. As such, her opinion is not probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[a] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board realizes a private audiological report containing a positive nexus relating the Veteran's hearing loss and tinnitus to his service has been submitted. Although conducted by a Doctor of Audiology, who is competent to assess a hearing loss and tinnitus disability and to opine on their etiologies, this nexus opinion is not probative because it is based on facts that are inconsistent with the other evidence of record. Specifically, the Veteran told the VA examiner that hearing protection was provided in service, and that he used it sometimes. He further told her that he had worked as an aircraft mechanic after service, and that hearing protection was not required. In contrast, he told the private physician that he did not wear hearing protection in service, and that he was not exposed to additional noise following his service in his civilian occupation. Due to these inconsistencies, this private doctor's opinion relying on this inaccurately recounted history cannot be used to establish the necessary nexus between the current hearing loss and tinnitus and the Veteran's military service. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (the Board is not bound to accept medical opinions that are based upon an inaccurate factual background). However, the report does have some value, to the extent it demonstrates the Veteran's current level of hearing loss. Because of these noted inadequacies, both in the VA and private examiner's opinions, additional medical comment is needed to assist in deciding these claims for hearing loss and tinnitus. See Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"). See, too, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). Accordingly, these claims are REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. If still available for further comment, return the file to the January 2011 VA compensation examiner for more definitive comment on the etiology of the Veteran's hearing loss and tinnitus, but especially insofar as the likelihood (very likely, as likely as not, or unlikely) these disorders are related or attributable to the already conceded noise exposure during his military service, or date back to his service. When previously commenting on this determinative issue of causation in January 2011, the VA examiner indicated that neither condition was related to the Veteran's service, relying heavily on the absence of complaints and treatment for same in service, while not according consideration to the lay statements of record regarding continuity of symptomatology. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion. Moreover, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (e.g., STRs and post-service VA and private treatment records, etc.). But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (contrarily indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements). The essence of 38 C.F.R § 3.303(b) is continuous symptoms, not treatment, to show continuity of symptomatology since the claimed injury in service - which, here, was the repeated exposure to the loud noise and consequent injury (acoustic trauma). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of showing chronicity (permanency) of disease or injury in service to in turn link the currently claimed disability to service. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Ultimately, the Board will have the responsibility of determining whether the lay testimony in this case is both competent and credible, as only then does it have probative value. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). Therefore, the examiner is asked to consider and comment on any statements the Veteran has made regarding the incidents in service when he was exposed to loud noise and the duration of his symptoms. If, for whatever reason, it is not possible or feasible to have this same VA examiner provide this further comment, then obtain this necessary medical nexus opinion from someone else who is qualified to make this determination. In this eventuality, however, this may require having the Veteran reexamined, but this is left to the designee's discretion. In the event it is determined that another examination is needed, then all necessary diagnostic testing and evaluation should be performed. Whoever is asked to comment is charged with reviewing the relevant medical and other evidence in the claims file for the pertinent history, including a complete copy of this remand. There also must be discussion of the underlying medical rationale of the opinion, if necessary citing to specific evidence in the file. 2. Then readjudicate these claims in light of this and all other additional evidence. If these claim are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs