Citation Nr: 1323532 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-46 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for bilateral sensorineural hearing loss and, if so, whether service connection is warranted. 2. Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for tinnitus and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The merits of the issues of entitlement to service connection for bilateral sensorineural hearing loss and tinnitus 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. The VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. In a February 2006 rating decision, the RO denied entitlement to service connection for bilateral sensorineural hearing loss and tinnitus; the Veteran was notified of this decision and of his appeal rights, but he did not appeal it to the Board. 2. Evidence received since the February 2006 rating decision relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claims; is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claims sought to be reopened; and raises a reasonable possibility of substantiating the claims for service connection for bilateral sensorineural hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The February 2006 rating decision denying service connection for sensorineural hearing loss and tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the February 2006 rating decision is new and material, and the claims have been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. Here, given the favorable outcome, any deficiencies in notice or assistance are considered moot. New and Material Evidence (Hearing Loss and Tinnitus) The Veteran originally filed a claim in November 2005 seeking service connection for bilateral sensorineural hearing loss and tinnitus. These claims were denied in a February 2006 rating decision finding no post-service evidence that the Veteran had current diagnoses of these claimed conditions. At that time, the Veteran did not provide any post-service evidence related to these conditions and his separation examination did not reflect diagnoses of hearing loss or tinnitus at time of separation from the military. The Veteran was notified of this decision and of his appeal rights, but he did not appeal the decision to the Board within one year of notice of the February 2006 rating decision. Since that appellate time frame, in June 2009, the Veteran submitted military personnel records that were not associated with the claims folder at the time of the February 2006 rating decision. The Board notes pertinent regulations indicate a claim will be reconsidered (i.e., not final) if relevant official service department records that existed at the time of the prior denial are associated with the claims file after the prior final denial. See 38 C.F.R. § 3.156(c) (emphasis added). Here, the personnel records were submitted by the Veteran to collaborate his contentions regarding in-service assignments and noise exposure. The February 2006 denial, however, was not predicated on a lack of in-service noise exposure. Rather, the claims were denied in February 2006 because there was no evidence of current diagnoses of hearing loss or tinnitus. In other words, these personnel records, while not considered at the time of the February 2006 denial, are not relevant to the determination made at that time. Thus, the Board finds 38 C.F.R. § 3.156(c) inapplicable here. For these reasons, the Board finds the February 2006 rating decision final. 38 U.S.C.A. § 7105(c). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision-makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Section 3.156(a) creates a low threshold for reopening previously denied claims. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (emphasis added). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. at 120. The phrase "raises a reasonable possibility of substantiating the claim" is one which enables rather than precludes reopening, and one which contemplates "the likely entitlement to a nexus medical examination if the claim is reopened." Id. at 121. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). At the time of the February 2006 rating decision in this case, the claims folder contained service treatment records and the Veteran's contentions. No post-service medical records were in the file. At that time, the Veteran indicated on his November 2005 initial claim that he suffered hearing loss and tinnitus immediately after basic and combat training to the extent that he had to be reassigned to a clerk MOS. The service treatment records reflected complaints of difficulty hearing in the right ear during the August 1961 entrance examination. August 1961 audiological testing did not reveal a hearing loss disability as defined in the regulations, but did reflect decreased hearing acuity at 4000 Hertz in the right ear. The Veteran was treated for excessive wax in the ears in April 1962, and tympanic membrane scars on the left ear were noted on the June 1963 separation examination. At that time, however, June 1963 audiological testing was within normal limits. A subsequent examination done in September 1965 (while the Veteran was in the Reserves) merely noted a "normal" 15/15 whisper test bilaterally. The RO denied the Veteran's claims in February 2006 because his military records did not support in-service incurrence of hearing loss or tinnitus, and the Veteran did not supply any post-service medical records reflecting current diagnoses of hearing loss or tinnitus. Since the February 2006 rating decision, medical records have been received, to include private audiograms and private opinions, which reflect diagnosed hearing loss and tinnitus from 2000 to 2012. In 2008 and 2012 private opinions, private audiologists opined the Veteran's hearing loss and tinnitus is likely due to military noise exposure. As mentioned above, the Veteran also provided military personnel records to highlight the fact that he was indeed part of basic and combat training at the beginning of his military career prior to being placed as a clerk. The new medical evidence contains evidence directly pertinent to current diagnoses and nexus. Thus, the Board concludes the new medical evidence obtained since the February 2006 rating decision constitutes new and material evidence with regard to both the hearing loss and tinnitus claims. For these reasons, reopening the claims is warranted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). ORDER New and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for bilateral sensorineural hearing loss; the claim is reopened, and the appeal is granted to this extent only. New and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for tinnitus; the claim is reopened, and the appeal is granted to this extent only. REMAND The Veteran claims when he entered the military he was initially assigned and trained to be part of the infantry. He indicates he underwent basic training and combat training, to include extensive exposure to firearms and explosives. Thereafter, he claims his hearing significantly declined, to include tinnitus, to the point where he was reassigned to a clerk position. His military records confirm his MOS as a personnel clerk, as well as his involvement in basic combat training and advanced individual training at the beginning of his military service. Service treatment records are silent as to complaints, treatment, or diagnoses of tinnitus. While hearing loss was never diagnosed during service, the Veteran was seen with ear complaints. With regard to in-service audiological testing, the Board notes the hearing loss regulation defines hearing loss based on decibel measurement recorded in ISO (International Organization for Standardization) or ANSI (American National Standards Institute) units. 38 C.F.R. § 3.385. Audiological testing dated before November 1, 1967 are presumed (unless otherwise stated) to be in ASA (American Standard Association) units. Consequently, VA practice is to convert the ASA units to ISO or ANSI units using the following conversion chart: HERTZ 500 1000 2000 3000 4000 ADD 15 10 10 10 5 See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. Here, on entrance examination, in August 1961, the Veteran complained of difficulty hearing in his right ear. Testing was within normal limits, but there was decreased hearing acuity in the right ear at 4000 Hertz. Specifically, audiological results were as follows (ISO or ANSI units after conversion are in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 5 (15) / 30 (35) LEFT -5 (10) -5 (5) 0 (10) / 0 (5) Thereafter, the Veteran was treated in April 1962 for excessive ear wax. The June 1963 separation examination noted scarring of the left tympanic membrane, although audiological testing was within normal limits bilaterally. Specifically, audiological results at separation were as follows (ISO or ANSI units after conversion are in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) / 15 (20) LEFT 5 (20) 10 (20) 10 (20) / 15 (20) The Veteran was also provided an examination in September 1965 (during his time in the Reserves). At that time, however, the examination merely noted "normal" 15/15 whisper tests bilaterally. No audiological testing was done. Again, although the Veteran reported difficulty hearing in his right ear on entrance in 1961, he was not actually diagnosed with right ear hearing loss at that time. Rather, the 1961 examiner noted a "1" for hearing under PULHES. The 1963 separation examination actually reveals an improved hearing threshold at 4000 Hertz (i.e., from 35 decibels to 20 decibels, converted). Audiometric findings with respect to the left ear reveal some decreased threshold shifts of hearing acuity from the 1961 entrance examination to the 1963 separation examination, but the Veteran was similarly never diagnosed with left ear hearing loss during his military service. The Veteran was also never diagnosed with tinnitus during his military service nor are there any in-service documented complaints of tinnitus. After service, the first medical evidence indicative of bilateral hearing loss is dated 2000, nearly four decades after service. The VA must take this opportunity to ensure all relevant private and VA medical records are associated with the claims folder. The private medical records in the claims folder contain an undated private opinion received in 2008 and another December 2012 private opinion from two different audiologists associating the Veteran's hearing loss and tinnitus to his military service. The Board does not find these opinions dispositive as they did not discuss or reconcile the relevant and accurate facts. For example, the December 2012 private examiner noted an upward threshold shift of 15 dB bilaterally "in the high frequencies" from 1961 to 1963 as support for her opinion, but failed to mention the Veteran's complaints of difficulty hearing in the right ear in 1961 and the 35 decibel threshold at 4000 Hertz (converted) in the right ear noted on entrance in 1961. The 2012 private examiner also did not address post-service noise exposure (other than to say his hearing loss "may have" worsened as a civilian) or reconcile the fact that no hearing loss is confirmed in the record at separation or for decades thereafter. The undated opinion (received in 2008), merely associated hearing loss and tinnitus to the Veteran's military service based on post-service audiological findings. For these reasons, the Board finds these private opinions insufficient as neither opinion fully considers and reconciles all relevant and accurate facts. See, e.g. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has never been afforded a VA examination. In light of the circumstances of his service, in-service treatment, and post-service diagnoses and nexus opinions, a VA examination is warranted to reconcile the conflicting evidence in this case. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any and all treatment he received privately and at the VA for his hearing loss and tinnitus which are not already of record and provide release forms for private treatment identified. If release forms are provided, obtain any and all private treatment records identified. All efforts to obtain records must be fully documented and VA facilities must provide negative responses if no records are found. 2. After the above development is complete, and records are obtained to the extent available, schedule the Veteran for an audiological VA examination to determine the current nature and likely etiology of any found hearing loss and tinnitus. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiner should conduct a thorough examination and provide a diagnosis for any pathology found. Based on examination findings and a review of the record, the examiner must answer the following questions: Does the Veteran have current diagnoses of hearing loss and/or tinnitus, and, if so: (A) With regard to the RIGHT EAR: The examiner's attention is specifically directed to the 1961 military entrance examination noting the Veteran's complaints of difficulty of hearing in the right ear with a 35 decibel threshold at 4000 Hertz (based on ANSI or ISO converted units); 1962 treatment for excessive ear wax; 1963 separation audiogram indicating an improved 20 decibel threshold at 4000 Hertz; a normal whisper test found within a 1965 examination, and the Veteran's description of in-service noise exposure. (i) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran's right ear hearing loss existed prior to his entry onto active duty? The examiner is, in particular, requested to reconcile (to the extent able) the 1961 audiometric findings with the improved 1963 audiometric findings at 4000 Hertz. (ii) If the answer to (A)(i) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pre-existing condition was not aggravated by service (e.g., in-service acoustic trauma) or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (iii) If the answer to either (A)(i) or (A)(ii) is no, is it at least as likely as not (50 percent probability) that the Veteran's right ear hearing loss had its onset in service or is otherwise attributable to his military service (e.g., due to acoustic trauma, ear wax treatment)? (B) With regard to the LEFT EAR: The examiner's attention is specifically directed to audiograms on entrance (August 1961) and separation (June 1963) showing some decreased thresholds at all frequency levels for the left ear (based on ANSI or ISO converted units); 1962 treatment for excessive ear wax; 1963 notations to tympanic membrane scars in the left ear; a normal whisper test found within a 1965 examination; the Veteran's description of in-service noise exposure; and the private opinions of record (an undated opinion received in 2008, and a 2012 opinion). (i) In light of the evidence of record, the circumstances of the Veteran's service, and the Veteran's contentions, is it at least as likely as not (50 percent probability) that the Veteran's left ear hearing loss had its onset in service or is otherwise attributable to his military service (e.g., due to acoustic trauma, ear wax treatment, findings of left ear tympanic membrane scars)? (C) With regard to TINNITUS: The examiner's attention is specifically directed to audiograms on entrance (August 1961) and separation (June 1963) (based on ANSI or ISO converted units); 1962 treatment for excessive ear wax; 1963 notations to tympanic membrane scars in the left ear; a normal whisper test found within a 1965 examination; the Veteran's description of in-service noise exposure; and the private opinions of record (an undated opinion received in 2008, and a 2012 opinion). (i) In light of the evidence of record, the circumstances of the Veteran's service, and the Veteran's contentions, is it at least as likely as not (50 percent probability) that the Veteran's tinnitus had its onset in service or is otherwise attributable to his military service (e.g., due to acoustic trauma, ear wax treatment, findings of left ear tympanic membrane scars)? The examiner is to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must 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. Then, readjudicate the Veteran's issues remaining on appeal. If the claim remains denied, provide the Veteran and her representative a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for response The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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 2002). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs