Citation Nr: 1327965 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-04 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active duty for training from April 1977 to July 1977, and active duty service from October 1990 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana (RO). As a procedural matter, the Board notes that the Veteran submitted additional evidence after the RO last considered the claim. Although he did not waive his right to have the evidence initially considered by the RO, the Board is granting the full benefits sought on appeal for the issue of entitlement to service connection for tinnitus, and thus, there is no prejudice to the Veteran to have such evidence considered by the Board. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Service connection for tinnitus was denied by a June 2006 rating decision. The Veteran did not perfect an appeal of that rating decision, and it is final. 2. Evidence associated with the claims file since the unappealed June 2006 rating decision is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for tinnitus and raises a reasonable possibility of substantiating the claim. 3. The Veteran's current tinnitus is related to his active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the June 2006 rating decision, and the Veteran's claim for entitlement to service connection for tinnitus is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the Veteran's claim to reopen the issue of entitlement to service connection for tinnitus, or his claim of entitlement to service connection for tinnitus. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting the claim to reopen, as well as granting the claim of entitlement to service connection for tinnitus. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). New and Material Evidence to Reopen Claim The Veteran contends that he has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for tinnitus. In a June 2006 rating decision, the RO denied service connection for tinnitus because the evidence did not show a relationship between the Veteran's tinnitus and his active service. The Veteran did not appeal the June 2006 rating decision, and it is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2012). Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the June 2006 rating decision is the last final disallowance with regard to the Veteran's claim, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and readjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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. "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. See 38 C.F.R. § 3.156 (a). In June 2008, the Veteran filed the present claim to reopen the issue of entitlement to service connection for tinnitus. In a May 2009 rating decision, the RO reopened the Veteran's claim of entitlement to service connection for tinnitus, but denied service connection on the merits, finding that the evidence was not sufficient to establish a relationship between his tinnitus and service. In January 2010, the Veteran perfected his appeal. Although the RO determined that new and material evidence was presented to reopen the claim of entitlement to service connection for tinnitus, this decision is not binding on the Board. Regardless of what the RO has done in this case, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7105. Thus, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett, 83 F.3d at 1384; McGinnis v. Brown, 4 Vet. App. 239 (1993) (finding that Board reopening is unlawful when new and material evidence has not been submitted). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. Comparing the evidence received since the June 2006 rating decision to the previous evidence of record, the Board finds that the additional evidence submitted includes evidence which is new and material to the issue of entitlement to service connection for tinnitus. At the time of the June 2006 rating decision, the evidence of record consisted of the Veteran's service treatment records for his first period of service, active duty for training, and partial records for his second period of service, VA outpatient treatment records, a VA examination report, and the Veteran's statements. The Veteran's statements indicate that he was exposed to noise during his second period of service, which was active duty service, to include Patriot missiles, as well as trucks. He also asserted that he had ringing in his ears upon his return from serving in Saudi Arabia. Service treatment records for his first period of service include the reports of a March 1977 induction examination, and a July 1977 separation examination, both of which were negative for complaints of or a diagnosis of tinnitus. A March 1988 Army National Guard enlistment examination is negative for complaints of or a diagnosis of tinnitus. Service treatment records for his second period of service include the report of history for an October 1990 induction examination, which notes the Veteran's complaint of ear, nose, or throat trouble; the report of medical examination is not associated with the claims file. The report of an April 2005 VA examination notes a diagnosis of tinnitus. The examiner opined that "the etiology of the tinnitus was probably noise exposure." Since the June 2006 rating decision, additional evidence has been received, including private treatment records, a VA examination report and addendum opinion, a letter from the Veteran's private physician, VA outpatient treatment records, lay statements, and statements from the Veteran. In particular, the Veteran submitted a July 2008 letter from B.C., M.D., which provided an opinion that the Veteran sustained acoustic trauma while serving in Desert Storm from 1990 through 1991. Dr. B.C. stated that such injury required the Veteran to wear a hearing aid and left him with persistent ringing in his ears that interfered with hearing, communication, and balance. Dr. B.C. concluded, that upon examination of the Veteran and review of his military and medical records, he found the Veteran's "disability to be service connected." Likewise, the April 2009 addendum to the March 2009 VA examination includes the examiner's finding that there was no evidence to support or dispute the Veteran's assertion that the onset of his current tinnitus occurred upon return from serving in Desert Storm. The examiner concluded, "therefore, the tinnitus is as likely as not related to active military noise exposure." The private medical opinion letter and VA addendum report linking the Veteran's tinnitus to service are new evidence because they were not of record at the time of the June 2006 rating decision. In addition, they are material, as they raise a reasonable possibility of substantiating the Veteran's claim for service connection. The Veteran's claim was denied in June 2006 because there was no medical evidence linking tinnitus to acoustic trauma during service. The July 2008 private letter from Dr. B.C., as well as the April 2009 addendum opinion from the VA examiner indicate that the Veteran's tinnitus is the result of his active duty service. As this evidence raises a reasonable possibility of substantiating the Veteran's claim, the Board concludes that the Veteran has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran contends that his current tinnitus began during active service due to noise exposure. Specifically, throughout the record, he asserts that his tinnitus began in approximately February 1991, after he returned from serving in Desert Storm as a result of acoustic trauma from Patriot missiles and trucks. In this regard, the Veteran's Form DD 214 shows his assignment to the 1086th Transport Company, as a motor transport operator and a light wheel mechanic. The Veteran does not contend that his tinnitus began during his period of active duty for training. Service treatment records from such period include the report of a March 1977 induction examination, which is negative for complaints, treatment, or a diagnosis of tinnitus. The report of a July 1977 separation examination from this period of active duty for training is also negative for complaints, treatment, or a diagnosis of tinnitus. Thereafter, the report of a March 1988 Army National Guard enlistment examination is negative for complaints, treatment, or a diagnosis of tinnitus. Service treatment records for the Veteran's active duty service include the report of history for an October 1990 induction examination, which notes the Veteran's complaint of ear, nose, or throat trouble. The report of medical examination is not associated with the claims file. Post-service records include the report of an April 2005 VA examination. During examination, the Veteran reported a history of military noise exposure due to his active duty service, to include Patriot missiles and trucks. He denied any post-service occupational or recreational noise exposure. Upon examination, the examiner diagnosed tinnitus. The examiner opined that "the etiology of the tinnitus was probably noise exposure." The examiner did not provide a rationale for the opinion offered. Private treatment records dated in July 2008 demonstrate that the Veteran sought treatment for tinnitus from Dr. B.C.. In a July 2008 letter, Dr. B.C. provided an opinion, that the Veteran sustained acoustic trauma while serving in Desert Storm from 1990 through 1991. Dr. B.C. stated that such injury required the Veteran to wear a hearing aid and left him with persistent ringing in his ears that interfered with hearing, communication, and balance. Dr. B.C. concluded, that upon examination of the Veteran and review of his military and medical records, he found the Veteran's "disability to be service connected." The Veteran was afforded a VA examination in March 2009, during which he reported a history military noise exposure due his active duty service, to include Patriot missiles, explosions, and sirens. He denied any post-service occupational or recreational noise exposure. Upon examination the diagnosis was tinnitus. In an April 2009 addendum to the March 2009 VA examination, the March 2009 VA examiner noted that the Veteran's claims file had been reviewed. The examiner stated that there was no evidence to support or dispute the Veteran's assertion that the onset of his current tinnitus occurred upon his return from serving in Desert Storm). The examiner concluded, "therefore, the tinnitus is as likely as not related to active military noise exposure." The Board finds that the evidence of record supports a finding of service connection for tinnitus. Post-service VA examination reports show current diagnoses of tinnitus in April 2005 and March 2009. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Although the April 2005 VA examiner opined that the etiology of the Veteran's current tinnitus was "probably" noise exposure, a medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. Nieves -Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). Therefore, the Board finds the April 2005 VA examiner's opinion of no probative value. The July 2008 private opinion letter and the accompanying treatment records from Dr. B.C. indicate complaints of ringing in the ears, as well as diagnoses of tinnitus. Dr. B.C. stated that he reviewed the Veteran's military and medical records, and noted the Veteran's past history of noise exposure in service, while serving in Desert Storm from 1990 through 1991. Dr. B.C. found that the Veteran's acoustic trauma in service resulted in persistent ringing in his ears; thus, his current tinnitus was a result of such in-service noise expose. The opinion of Dr. B.C. is based upon an accurate assessment of the Veteran's assignment during service, as the Veteran's Form DD 214 shows he was assigned to the 1086th Transport Company. Moreover, the opinion considered the Veteran's lay statements regarding his exposure to noise during service. In addition, the April 2009 addendum opinion from the March 2009 VA examination supports the Veteran's claim, as the examiner opined that the Veteran's tinnitus was "as likely as not related to active military noise exposure." The Board finds the July 2008 private opinion from Dr. B.C. highly probative evidence. The opinion included a rationale and discussion of the medical principles underlying the opinion, and considered the Veteran's reported medical history. Moreover, the history the Veteran provided about noise exposure in service, where he was exposed to noise from serving as a motor transport operator, is consistent, competent, and credible. See Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, service connection for tinnitus is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. REMAND The Veteran contends that his current bilateral hearing loss disorder is due to acoustic trauma which he experienced during his active duty service. Specifically, throughout the record, he asserts that he was exposed to Patriot missiles and trucks while serving in Desert Storm from October 1990 through February 1991. The Veteran does not contend that his hearing loss began during his active duty for training; indeed, service treatment records for such time include the report of a March 1977 induction examination, which is negative for complaints, treatment, or a diagnosis of any kind of hearing disorder. The examination report demonstrates that the Veteran's hearing was normal upon induction into service, as shown by the results of the whispered voice test, which reveals 15/15, as well as the audiometric findings. The report of a July 1977 separation examination is negative for complaints, treatment, or a diagnosis of any kind of hearing disorder. An audiometric examination was not performed upon separation. A March 1988 Army National Guard enlistment examination is negative for complaints of any kind of hearing disorder. The examination report demonstrates that the Veteran's left ear hearing was evaluated as normal, as shown by the audiometric findings. The audiometric findings for the Veteran's right ear demonstrate a hearing loss disability for VA purposes. 38 CFR § 3.385 (2012). Service treatment records for the Veteran's active duty service include the report of history for an October 1990 induction examination, which notes the Veteran's complaint of ear, nose, or throat trouble. The report of medical examination is not associated with the claims file. Post-service records include the report of an April 2005 VA examination. During examination, the Veteran reported a history of military noise exposure due his active duty service, to include Patriot missiles and trucks. He denied any post-service occupational or recreational noise exposure. Upon examination, the diagnosis was bilateral sensorineural hearing loss. The examiner opined that the etiology of the current bilateral hearing loss disorder was "probably" noise exposure. The report of a March 2009 VA examination shows that the Veteran reported a history military noise exposure due to his active duty service, to include Patriot missiles, explosions, and sirens. He denied any post-service occupational or recreational noise exposure. Upon examination, the diagnosis was bilateral sensorineural hearing loss. In an April 2009 addendum opinion, the March 2009 VA examiner reviewed the claims file, and noted that the Veteran's hearing was normal upon induction onto his active duty for training in March 1977. He noted that a March 1988 retention examination for the National Guard showed normal left ear hearing, and right ear hearing loss at 4000 Hertz. He further noted that the Veteran's hearing was evaluated in 2005, and explained that it had decreased by about ten decibels in a fifteen year period. Regarding the current right ear hearing loss disorder, the examiner opined that it was not a result of the Veteran's active duty service, and it was not aggravated beyond a normal progression by such service. Regarding the current left ear hearing loss disorder, the examiner stated that he could only "speculate" about the onset, and "my suspicion does not support the claim that the hearing loss resulted from ACTIVE military service." He concluded that it was "more likely" that the left ear hearing loss disorder was associated with the twelve years of noise exposure during the period of 1978 to 1991, while serving in the National Guard. The examiner did not provide a rationale for any of the opinions rendered. The April 2005 and April 2009 VA opinions are inadequate for the purposes of adjudicating the appeal as they failed to provide a rationale for the opinions provided. Once VA undertakes the effort to provide an examination when developing 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. Accordingly, an additional medical opinion addressing the etiology of the Veteran's current bilateral hearing disorder is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, following the December 2009 statement of the case, additional records were added to the evidence of record that the RO has not considered, to include lay statements from fellow servicemen received in April 2010. This evidence is relevant to the Veteran's claim, and a waiver of RO consideration of such evidence has not been received. Therefore, the additional evidence must be considered by the RO. 38 C.F.R. §§ 19.37, 20.1304 (2012). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the evidence of record, to include the claims file and all electronic records, to include Virtual VA, must be made available to the March 2009 VA examiner, and the examiner must specify in the examination report that these records were reviewed. If the VA examiner who conducted the March 2009 examination is unavailable, an appropriate VA examiner must be directed to provide the supplemental finding to the March 2009 VA examination. If the VA examiner determines another examination is necessary to provide the finding, an examination must be scheduled. Based on all the evidence of record, and with consideration of the Veteran's statements and lay statements, the examiner must state whether the currently diagnosed bilateral hearing disability was incurred in or related to the Veteran's active duty service from October 1990 to February 1991. The examiner must also express an opinion as to whether the currently diagnosed right ear hearing disorder was present during the Veteran's active duty service from October 1990 to February 1991, and if so, whether the disorder existed prior to the Veteran's entrance into active duty. In answering this question, the examiner must specifically indicate the evidence of record which supports any conclusion reached. With respect to any right ear hearing disorder which the examiner believes existed prior to the Veteran's entrance onto active duty, the examiner must state whether the disorder underwent an untoward increase in the underlying disability that was not due to natural progression of the disorder during the Veteran's active duty service from October 1990 to February 1991. In answering this question, the examiner must specifically indicate all evidence of record that supports any conclusion reached. With respect to any currently diagnosed right ear hearing disorder that was not present during active duty service, the examiner must state whether it was related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The addendum examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated with consideration of the evidence of record, to include any newly acquired evidence submitted without a waiver of RO jurisdiction. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs