Citation Nr: 1330232 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-23 814 ) 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 received to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 3. Entitlement to a disability evaluation in excess of 50 percent for posttraumatic stress disorder prior to June 14, 2012, and in excess of 70 percent from June 14, 2012. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active duty service from July 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 and July 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). In a January 2010 rating decision, the rating for posttraumatic stress disorder was increased from 30 percent to 50 percent, effective March 17, 2009. In a subsequent August 2012 supplemental statement of the case, the rating for posttraumatic stress disorder was increased from 50 percent to 70 percent, effective June 14, 2012. As the rating for the Veteran's posttraumatic stress disorder is less than the maximum available rating, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. In a July 2009 rating decision, the RO denied reopening the claim of entitlement to service connection for bilateral hearing loss. 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 July 2009 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 bilateral hearing loss and raises a reasonable possibility of substantiating the claim. 3. The Veteran's current bilateral hearing loss is related to his active duty service. 4. Service connection for tinnitus was denied by a March 2004 rating decision. The Veteran did not perfect an appeal of that rating decision, and it is final. 5. Evidence associated with the claims file since the unappealed March 2004 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. 6. The Veteran's current tinnitus is related to his active duty service. 7. In August 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran through his representative, that a withdrawal of his appeal was requested for the issues of entitlement to a disability evaluation in excess of 50 percent for posttraumatic stress disorder prior to June 14, 2012, and in excess of 70 percent from June 14, 2012. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the July 2009 rating decision, and the Veteran's claim for entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 2. Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 3. New and material evidence has been submitted since the March 2004 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); 38 C.F.R. § 3.156 (2013). 4. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013) 5. The criteria for withdrawal of the substantive appeal by the Veteran for the issues of entitlement to a disability evaluation in excess of 50 percent for posttraumatic stress disorder prior to June 14, 2012, and in excess of 70 percent from June 14, 2012, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (b), (c) (2013). 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 issues of entitlement to service connection for bilateral hearing loss and tinnitus, or his claim of entitlement to service connection for bilateral hearing loss and 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 (2013). 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 bilateral hearing loss and 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 bilateral hearing loss and entitlement to service connection for tinnitus. In a July 2009 rating decision, the RO determined that service connection for bilateral hearing loss remained denied because the evidence submitted was not new and material, as it did not show a relationship between the Veteran's bilateral hearing loss and his active service. The Veteran did not appeal the July 2009 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 (2013). In a March 2004 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 March 2004 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 (2013). 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 July 2009 and March 2004 rating decisions are the last final disallowance with regard to the Veteran's claim for service connection for bilateral hearing loss and tinnitus, respectively, the Board must review all of the evidence submitted since those actions 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 December 2010, the Veteran filed the present claim to reopen the issues of entitlement to service connection for bilateral hearing loss and tinnitus. In a July 2011 rating decision, the RO reopened the Veteran's claim of entitlement to service connection for bilateral hearing loss and tinnitus, but denied service connection for both issues on the merits, finding that the evidence was not sufficient to establish a relationship between the Veteran's current bilateral hearing loss and tinnitus and his service. In August 2012, 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 bilateral hearing loss and 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 July 2009 rating decision to the previous evidence of record, the Board finds that the additional evidence submitted includes evidence that is new and material to the issue of entitlement to service connection for bilateral hearing loss. Similarly, comparing the evidence received since the March 2004 rating decision to the previous evidence of record, the Board also finds that the additional evidence submitted includes evidence that is new and material to the issue of entitlement to service connection for tinnitus. At the time of the March 2004 and July 2009 rating decisions, the evidence of record consisted of the Veteran's service treatment records, service personnel records, a VA examination report, and the Veteran's statements. The Veteran's statements indicate that he was exposed to noise during active duty service, to include his service as a mortar man in Vietnam, where he participated in several combat operations. He further asserted that his current hearing loss and tinnitus began during service. Service treatment records include the report of a March 1968 induction examination, which was negative for complaints or a diagnosis of hearing loss or tinnitus. The report of a January 1970 separation examination was negative for a diagnosis of hearing loss or tinnitus. The report of a February 2004 VA examination notes diagnoses of bilateral sensorineural hearing loss and tinnitus. The examiner opined that it "is not as least as likely than not his hearing loss and tinnitus are service connected." In providing the opinion, the examiner noted that there was no evidence of hearing loss or tinnitus in the claims file or upon separation examination. Since the March 2004 and July 2009 rating decisions, additional evidence has been received, including VA examination reports, and a letter and associated audiological evaluation from the Veteran's private audiologist. In particular, the Veteran submitted an October 2011 letter from C.E., Au.D CCC-A, and an accompanying audiometric evaluation that indicates bilateral hearing loss and tinnitus disorders. C.E. concluded that upon examination of the Veteran and review of the aforementioned service treatment records, post-service medical evidence, and the Veteran's reported history, she found the Veteran's bilateral hearing loss and tinnitus was "more likely than not" related to his military service. The private medical opinion letter linking the Veteran's bilateral hearing loss and tinnitus to service is new evidence because it was not of record at the time of the July 2009 or March 2004 rating decisions. In addition, it is material, as it raises a reasonable possibility of substantiating the Veteran's claim for service connection for bilateral hearing loss and tinnitus. As such, the Board concludes that the Veteran has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for bilateral hearing loss and for tinnitus. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service Connection - Bilateral Hearing Loss and Tinnitus 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; 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). Hearing impairment is considered to be a disability when the auditory threshold level in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385. The Veteran contends that his current bilateral hearing loss and tinnitus began during active service. Specifically, he asserts that he was exposed to acoustic trauma coincident to his duties as a mortar man and gunner while serving in Vietnam, where he participated in several combat operations. In this regard, the Veteran's Form DD 214 shows his assignment to the 3rd Marine Division as a mortar man, as well as demonstrates that he received the Vietnam Service Medal with one star and the Vietnam Campaign Medal with device. Moreover, the Veteran's service personnel records demonstrate his participation in multiple combat operations as a gunner while serving in Vietnam, in January 1969 through September 1969, as well as approximately one year of service in Vietnam. The Veteran's service treatment records include the report of a March 1968 induction physical examination, which is negative for complaints, treatment, or a diagnosis of any kind of hearing disorder, to include hearing loss or tinnitus. The examination report demonstrates that the Veteran's hearing, bilaterally, was evaluated as normal upon entrance into service, as shown by the results of the audiometric evaluation. The report of a January 1970 separation physical examination is negative for a diagnosis of hearing loss or tinnitus; the whispered voice test is 15/15. Although there is no evidence of complaints or diagnoses of hearing loss or tinnitus documented in the Veteran's service treatment records, the Veteran is a combat veteran, thus, his reported history of the onset of difficulty hearing and tinnitus during service, as a result of the incidents in service, is accepted as credible and competent evidence. 38 U.S.C.A. § 1154(b); see Libertine v. Brown, 9 Vet. App. 521, 524 (1996); see also Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996); 38 C.F.R. § 3.304(d). The Veteran was afforded a VA examination in February 2004, during which he reported a history of military noise exposure due his service in Vietnam, to include mortars and cannons. He reported minimal post-service noise exposure. Upon examination and review of the Veteran's claims file, the examiner diagnosed mild to moderate sensorineural bilateral hearing loss and tinnitus. In this regard, the Veteran's hearing loss disability meets the criteria for VA purposes, as audiological evaluation demonstrates auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, bilaterally. 38 C.F.R. § 3.385. The examiner noted that the configuration of the right ear hearing loss was not typical of that caused by hazardous noise exposure, whereas the left ear had some characteristic of possible hazardous noise exposure. The examiner noted that the Veteran offered a plausible explanation with respect to the cause of his current bilateral hearing loss and tinnitus. The examiner further noted that claims file did not reveal any evidence of hearing loss or tinnitus, to include upon separation examination. The examiner also noted that there appeared to be no contributing factors of family history, ototoxic drugs, or recreational noise exposure. In summary, the examiner opined that it "is not as least than likely than not his hearing loss and tinnitus are service connected." The Veteran was afforded a VA examination in June 2011. The examiner noted that the audiometric test results were not reported because they were not considered reliable. Specifically, the examiner noted that there was poor consistency with respect to the Veteran's responses, to include poor consistency between test responses and observed conversational ability, as well as poor inter-test agreement. The examiner concluded, that while the Veteran was pleasant in demeanor, he failed to comply with test procedure. The October 2011 private opinion letter and the accompanying audiometric evaluation from C.E., Au.D CCC-A indicate diagnoses of bilateral hearing loss and tinnitus. C.E. noted the Veteran's report of significant noise exposure as a result of his duties as a gunner and mortar man, while serving for 11 months in Vietnam, to include combat service. C.E. further noted the Veteran's report of noise exposure subsequent to Vietnam, during his service in Okinawa, where he was also exposed to loud artillery, such as 50 caliber machine guns, the M-14, and the M-1, as well as the carbine, on a daily basis. C.E. noted the Veteran's report of ringing in his ears during service, and explained that he did not report the symptom to his superior at the time. C.E. also noted the Veteran's report of ringing in his ears since such service. C.E reported that the Veteran denied post-service recreational and occupational noise exposure, and explained that subsequent to service, the Veteran worked in a warehouse for 30 years that was regulated, and the noise level was not considered significant enough to require hearing protection. C.E. indicated that she reviewed the Veteran's service treatment records, to include his induction and separation examinations, as well as his post-service treatment records. C.E. stated that the induction examination revealed normal hearing, bilaterally, and that upon separation, the Veteran was given a whispered voice test, which could neither prove or disprove normal hearing, because that type of test did not accurately assess high frequency sensitivity. C.E. noted a post-service February 2004 VA examination report, which indicated mild to moderate high frequency bilateral hearing loss. C.E. compared the October 2011 audiological evaluation to the February 2004 VA examination, and found that the Veteran's hearing threshold levels decreased approximately five decibels to 20 decibels in the right ear, and approximately five decibels in the left ear. C.E. further noted medical treatise, which indicate that noise exposure without the use of hearing protection can cause and/or contribute to noise-induced hearing loss, acoustic trauma, and tinnitus in individuals. Based on the treatise, C.E. stated that in the Veteran's case, his tinnitus could "as likely as not be attributed to the same etiology as his hearing loss, i.e., in-service exposure to noise." C.E. concluded that upon examination of the Veteran and review of the aforementioned service treatment records, post-service medical evidence, and the Veteran's reported history, C.E. found the Veteran's bilateral hearing loss and tinnitus were "more likely than not" related to his military service. The Veteran was afforded a VA examination in May 2012. The examiner noted that the audiometric test results were not reported because they were not considered reliable. Specifically, the examiner stated that the test results were inconsistent and did not appear to reflect the Veteran's maximal effort. The Board finds that the evidence of record supports a finding of service connection for bilateral hearing loss and tinnitus. A post-service VA examination report dated in February 2004, as well as a private audiological evaluation dated in October 2011 show current diagnoses of bilateral hearing loss and tinnitus. 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). The October 2011 private opinion letter and the accompanying audiological evaluation from C.E., Au.D CCC-A, noted the Veteran's complaints of hearing loss and ringing in the ears since service. C.E. noted the Veteran's past history of noise exposure in service, and provided a detailed description of the Veteran's military occupational specialty in service when his hearing loss and tinnitus began, as the Veteran was a gunner and mortar man in Vietnam, and participated in combat operations. C.E. also provided a detailed discussion of the Veteran's service treatment records, noting that his hearing was normal, bilaterally, upon induction into service and that upon separation, the Veteran was given a whispered voice test, which could neither prove or disprove normal hearing, because that type of test did not accurately assess high frequency sensitivity. C.E. further compared the hearing evaluation she performed to the one contained within the claims file, and indicated that the test she performed showed that the Veteran's bilateral hearing loss had worsened since the previous evaluation dated in February 2004. In addition, based upon consideration of the record and cited medical treatise, C.E. found that the etiology of the Veteran's current tinnitus could "as likely as not be attributed to the same etiology as his hearing loss, i.e., in-service exposure to noise." C.E. concluded that upon examination of the Veteran and review of the aforementioned service treatment records, post-service medical evidence, and the Veteran's reported history, C.E. found the Veteran's current bilateral hearing loss and tinnitus were "more likely than not" related to his military service. The February 2004 VA examiner found that the Veteran's current bilateral hearing loss and tinnitus were "not as least than likely than not" related to service, but did not discuss how that conclusion was reached. Although the examiner indicated that the Veteran offered a plausible explanation with respect to the cause of his current bilateral hearing loss and tinnitus, he also noted that the claims file did not reveal any evidence of hearing loss or tinnitus, to include upon separation examination. Thus, the examiner in significant part, appeared to base his opinion on a lack of documentation of hearing loss and tinnitus during service and upon separation from service. In this regard, the regulations do not preclude service connection for hearing loss that first met the regulations requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Regarding the current tinnitus, although the examiner reportedly reviewed the claims file, he failed to acknowledge the lay assertions of record regarding the Veteran's ringing in his ears during service. Therefore, the Board finds the February 2004 VA examination report of no probative value. The Board finds the October 2011 private opinion C.E. highly probative evidence. The opinion included a rationale and discussion of the medical principles underlying the opinion, and considered the service treatment records, post-service medical records, and 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 gunner and mortar man, is consistent, competent, and credible. See Jandreau, 492 F.3d at 1376-77; see also Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, service connection for bilateral hearing loss and tinnitus is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. In an August 2012 statement, the Veteran's representative withdrew the appeal for the issues of entitlement a disability evaluation in excess of 50 percent for posttraumatic stress disorder prior to June 14, 2012, and in excess of 70 percent from June 14, 2012. Regarding such issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues on appeal and they are dismissed. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. The claims for entitlement to a disability evaluation in excess of 50 percent for posttraumatic stress disorder prior to June 14, 2012, and in excess of 70 percent from June 14, 2012, are dismissed. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs