Citation Nr: 1316280 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 13-06 076 ) 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 for entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The reopened issue of entitlement to service connection for right ear hearing loss and the new issue of entitlement to service connection for left ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The claim for service connection for right ear hearing loss was initially denied in an unappealed June 1993 rating decision. 2. The evidence received since the June 1993 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim. 3. Affording the Veteran the benefit of the doubt, the currently diagnosed tinnitus is related to military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen service connection for right ear hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Veteran's claim for entitlement to service connection for hearing loss in his right ear was initially denied in a June 1993 rating decision. The RO found that although the Veteran had a current right ear hearing loss, there was no evidence submitted showing hearing loss at the time of separation from service or within the presumptive period. See Rating Decision, June 1993. Specifically, the RO found the Veteran's medical examination at the time of his separation indicated his hearing was normal. Id. The Veteran did not appeal the June 1993 denial of the claim and the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence of record as of the June 1993 RO rating decision consisted of the Veteran's October 1957 separation examination and report of medical history, his lay assertions of a severe hearing loss in his right ear incurred during service and a June 1992 private hearing test and report. It was noted by the RO that the Veteran's service treatment records (STRs) were unavailable due to a fire. The only available STRs document the Veteran's October 1957 separation examination, which showed his ears were normal and a score of 15/15 on a whispered hearing test. The STRs also contain the Veteran's October 1957 report of medical history, which made no note of existing hearing problems. New evidence received since the 1993 denial of the Veteran's claim include positive nexus opinions from two private doctors. In June 2010, Dr. M.L.C. opined that the Veteran's long standing permanent sensorineural hearing loss and constant tinnitus in the right ear was due to acoustic trauma from machine gun fire while serving in the Army. Additionally, Dr. M.L.C. found that it was at least as likely as not that the Veteran sustained damage in his left ear related to his military noise exposure. In November 2010, Dr. M.E.B. concluded that it was "very clear" the Veteran had sudden sensorineural hearing loss bilaterally from machine gun trauma in 1955. Since that time, the Veteran has had a non-functioning right ear but experienced some recovery in the left ear. The Veteran also has submitted numerous personal statements, recounting his sudden bilateral hearing loss and tinnitus after working with 50 caliber machine guns during field artillery training in 1955. The Veteran states he was told the hearing loss was only temporary. He recovered some of the hearing in his left ear but none in his right ear. The Veteran sought treatment for his hearing loss in-service and was given a hearing test about eighteen months later. The Veteran alleged that he has experienced tinnitus and hearing loss since 1955. 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). Thus, the Veteran's lay statements regarding his in-service exposure to acoustic trauma and hearing difficulties since service are presumed credible, along with the two positive private medical nexus opinions. All of the above evidence received since June 1993 is new as it was not previously considered and is also material as it relates to previously unestablished facts: the exposure of the Veteran to acoustic trauma in-service, continuity of hearing difficulties since service, and medical opinions relating the Veteran's in-service acoustic trauma to his hearing loss. Additionally, this new evidence is also material as it raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining that the language of 38 C.F.R. § 3.156(a) ". . . suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering other evidence of record, raises a reasonable possibility of substantiating the claim."). New and material evidence has therefore been received and reopening of the claim for entitlement to service connection for right ear hearing loss is warranted. Given the favorable nature of the Board's decision to reopen the claim, further discussion of VA's duties to notify and assist the claimant with respect to the claim to reopen is not necessary. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). II. Service Connection- Tinnitus The Veteran contends he has tinnitus related to his military service, specifically his exposure to 50 caliber machine guns during field artillery training in 1955. See, e.g., Veteran's Application for Compensation and/or Pension, September 2010. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary 1930 (32nd ed. 2012). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, such as tinnitus, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant may rely on lay evidence "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, 492 F.3d at 1377. The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has experienced ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Although the Veteran served as an administrative specialist with the Army, he claims his tinnitus is attributable to noise exposure during his 1955 field artillery training. The Veteran states that upon completion of feeding ammunition into a machine gun, he could not hear out of either ear. The Veteran went to the Army medical dispensary and was told that his hearing loss was only temporary. He also claims that approximately two years later he complained about his hearing issues and was provided with a hearing examination in 1956. As a result of his hearing issues, the Veteran states he was exempted from re-qualifying weapons training in 1956 and 1957. Post-service the Veteran worked in journalism and denies any occupational noise exposure. The Veteran claims that he has experienced tinnitus and hearing loss since service. See Veteran's Application for Compensation and/or Pension, September 2010; Personal Statement, December 2010. Despite the fact that the record is void of documentation of complaints or treatment for tinnitus during service, the Veteran is competent to describe the nature and extent of his in-service noise exposure. There is no evidence that the Veteran is not credible. Thus, based on the foregoing, the Board finds that the Veteran indeed had noise exposure during service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Except for the report of an October 1957 separation examination and related Report of Medical History, the Veteran's complete STRs are unavailable due to fire-related damage. These two available records are silent as to any complaints, treatment or diagnoses of tinnitus. The Veteran's October 1957 separation examination shows his ears were normal and he received a 15/15 on a whispered hearing test. On the Veteran's October 1957 report of medical history, he noted a history of mumps, appendicitis, boils, and ear, nose or throat trouble. In the physician's summary at the end of the report, the doctor documented the Veteran's 1951 submucous resection and 1947 appendectomy. No mention is made of any history of tinnitus or hearing loss. A June 1992 report from the Excelsior Springs Medical Center documents the Veteran's reports of longstanding bilateral hearing loss, worse in the right ear with intermittent tinnitus in the right ear. The Veteran related his tinnitus and hearing loss to noise exposure in the military. The audiological examination diagnosed moderate high frequency sensorineural hearing loss in the left ear and moderate low frequency sloping to severe profound sensorineural hearing loss in the right ear. The examiner did not provide a nexus opinion. In May 2010, the Veteran obtained a private hearing test, which revealed bilateral sensorineural hearing loss. Dr. M.L.C, a doctor of audiology, documented the Veteran's history of exposure to machine gun fire while in the Army and post-service employment in the newspaper industry, which did not expose him to noise. The doctor opined that the Veteran's long standing permanent sensorineural hearing loss and constant tinnitus in his right ear was due to his in-service acoustic trauma. The doctor noted that none of the Veteran's STRs were available. The Veteran obtained a second private medical opinion in November 2010 from Dr. M.E.B. The doctor performed a hearing test and found the Veteran had severe to profound sensorineural hearing loss on the right and moderate to severe sensorineural hearing loss on the left. The Veteran stated that in 1955 he was feeding ammunition into a 50 caliber machine gun during training when he experienced sudden hearing loss in both ears. While he recovered some hearing function in his left ear, the hearing in his right ear never returned. The Veteran now has tinnitus in both ears, which is more pronounced on the right. The Veteran submitted a statement from his wife that states his hearing has grown progressively worse over the years. See Wife's Statement, September 2010. The Veteran has had to leave events due to headaches created by high levels of unintelligible noise in his right ear. Id. Both his work and personal life have been affected by his hearing condition. Id. The Veteran also provided a statement from a co-worker he has known for seven years, who documented the Veteran's problems with hearing and the negative effects his hearing issues have had on his career as a journalist. See Letter from J.D.R., October 2010. In another letter, an acquaintance who has know the Veteran for six years discussed the negative impact of the Veteran's hearing loss on his positions as a journalist and marketing/community affairs representative. See Letter from T.C., October 2010. In July 2012, the Veteran underwent a VA audiological examination. The Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. The examiner opined that there was no evidence the Veteran suffered tinnitus or hearing loss during service. The examiner also noted the Veteran had no combat service. As a result, the examiner found he could not be fifty percent or more certain that the Veteran's tinnitus started during military service. The Veteran is competent to report on in-service noise exposure, his current symptoms, and the history of those symptoms. Washington, 19 Vet. App. at 368. The Veteran has consistently stated that he has experienced ringing in his ears since service and it was noted in a 1992 examination. As discussed above, tinnitus is a condition that a lay person can describe because it is defined as a subjective noise in the ears. Charles, 16 Vet. App. at 374. Thus, the Board finds the Veteran credible with regard to his claim of incurrence of tinnitus in-service and continuity of tinnitus since service. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). After review of the evidence, the Board finds that service connection is warranted for tinnitus based on the competent and credible evidence that tinnitus began during service and has existed since. The Board acknowledges that the record includes a negative nexus opinion from a VA examiner, which was based, in part, on the fact that there were no documented complaints of hearing loss or tinnitus in the Veteran's STRs. However, the majority of the Veteran's STRs are unavailable due to fire damage and the VA examiner failed to consider the Veteran's credible statements that he experienced ringing in his ears during service that has continued to the present time. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). Thus, the VA examiner's opinion regarding the Veteran's tinnitus is of limited probative value. The Board finds the evidence is in equipoise as to whether the Veteran's tinnitus is related to service. The evidence of record demonstrates that the Veteran has tinnitus; that he was exposed to acoustic trauma in service; that he was not exposed to occupational noise exposure post-service; that he has experienced tinnitus since service; and, that the July 2010 and November 2010 private medical opinions attribute the Veteran's current tinnitus to his military noise exposure. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). The VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. ORDER New and material evidence having been submitted, reopening of the claim for entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMAND A remand is necessary for additional evidentiary development. The Veteran contends that while in service he was exposed to acoustic trauma that caused his current bilateral hearing loss. Specifically, he contends that during field artillery training in 1955, after feeding ammunition into a 50 caliber machine gun, he lost hearing in both ears. Since that time the hearing loss in his left ear has improved, while the hearing loss in his right ear has remained constant. The record contains two positive nexus opinions from private doctors. However, both the July 2010 and November 2010 private medical opinions fail to provide a detailed rationale to support their conclusions that the Veteran's hearing loss was caused by his in-service exposure to 50 caliber machine guns. See Nieves-Rodriguez, 22 Vet. App. at 304. Additionally, while the July 2010 examiner refers to histopathology literature to support a finding that the Veteran's left ear hearing loss is related to service, no citation for the literature is provided. Id. The July 2012 VA examiner found no nexus between the Veteran's hearing loss and his service. However, opinion is inadequate because although the examiner discusses medical principles, she does not discuss the Veteran's statements about his in-service noise exposure and subsequent hearing loss. Additionally, while the VA examiner opined that the Veteran's hearing loss was consistent with progressive hearing loss, not noise induced hearing loss, the examiner also found that the Veteran's hearing loss was worse than normal progressive hearing loss. The examiner failed to explain what could have caused the Veteran's abnormal progressive hearing loss. See Nieves-Rodriguez, 22 Vet. App. at 304. Therefore, a new VA opinion should be obtained to address whether or not the Veteran's hearing loss was caused by noise exposure in-service and a detailed rationale for the opinion should be provided. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any hearing loss issues since November 2010. After securing the necessary release(s), obtain these records. 2. After completion of the foregoing, schedule the Veteran for a VA audiological examination to determine the current nature and likely etiology of his bilateral hearing loss. The claims file, to include a copy of this Remand, must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. Based on the examination and review of the record, the examiner is requested to provide the following information: It is at least as likely as not (i.e. probability of 50 percent or greater) that any current diagnosed hearing loss had its onset in service? The VA examiner is requested to provide a thorough rationale for any opinion provided. In providing the opinion, the examiner should address the Veteran's in-service field artillery training where he was exposed to 50 caliber machine guns and his reports of hearing loss in both ears immediately after this incident, with only the hearing in his left ear improving after that time. The examiner is reminded that lack of a diagnosis of hearing loss in the Veteran's STRs is not fatal to these claims. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs