Citation Nr: 1331216 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 12-05 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Bryan Held, Agent ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1962 to May 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a May 2001 rating decision, the RO denied the claim for entitlement to service connection for bilateral hearing loss; the Veteran did not timely perfect an appeal. 2. The evidence received since the May 2001 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating that claim. 3. Affording the Veteran the benefit of the doubt, the currently diagnosed tinnitus is related to military service. CONCLUSIONS OF LAW 1. The May 2001 RO decision denying the claim of service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. The evidence received since the May 2001 rating decision is new and material, and the previously denied claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1103 (2013). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. In light of the favorable action taken by the Board, because the claim for entitlement to service connection for bilateral hearing loss is reopened and remanded for further development and the claim for entitlement to service connection for tinnitus is granted, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.159. II. New and Material Evidence In general, RO rating decisions that are not timely appealed become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. New evidence is defined as existing evidence that was 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). The Veteran's bilateral hearing loss claim was initially denied in May 2001, on the grounds that any hearing loss pre-existed service and was not aggravated beyond its natural progression in service. The Veteran did not appeal the May 2001 denial of the claim and the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the May 2001 denial consisted of the Veteran's service treatment records, private treatment records, and the Veteran's assertions that his hearing loss was due to service. Evidence received since the May 2001 denial includes: a private opinion that the Veteran's in-service audiology tests were inconsistent and that the Veteran's service caused severe damage to his hearing. This evidence was not previously considered and it is material, as it relates to a previously unestablished fact (that hearing was aggravated during service) and raises a reasonable possibility of substantiating the claim. As new and material evidence has been received, reopening of the claim for entitlement to service connection for bilateral hearing loss is warranted. III. Service Connection During his July 2010 VA audiology examination, the Veteran stated that he has tinnitus related to his military service, specifically from noise exposure at a missile range during training in 1963. 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. § 1110; 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), for disabilities listed in 38 C.F.R. § 3.309(a), 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). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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 is competent to report what he experiences; i.e., the Veteran is competent to report that he first experienced ringing in his ears during service, that the ringing has continued since that time, and that he currently continues to experience ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran served as an Air Defense Missile crewman. The Veteran states that he was exposed to noise trauma without hearing protection, and that his tinnitus began in 1963 during training with his artillery unit at a missile range. Service treatment records dated June 1963 indicate the Veteran complained of difficulty hearing after working on 50 KW generators. He was prescribed ear plugs. The Veteran's service treatment records are silent as to complaints, treatment for or diagnosis of tinnitus. 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 had noise exposure during service. 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In July 2010, the Veteran was afforded a VA audiological examination at which time he described current symptoms of bilateral ringing in the ears which he said started while training at a missile range in 1963. He reported that he worked as a police officer after service, without hearing protection, but that he had no exposure to loud noise after service. The diagnosis was bilateral sensorineural hearing loss and bilateral tinnitus. The examiner opined that the etiology of the Veteran's tinnitus is at least as likely as not associated with hearing loss. The examiner also opined that it is at least as likely as not that the Veteran's tinnitus is related to his position in an artillery unit during his military service. The RO requested clarification from the July 2010 examiner as to whether the Veteran's tinnitus is associated with his hearing loss or related to the Veteran's service. In July 2010, the examiner opined that the Veteran's tinnitus can be attributed to hearing loss. After review of the evidence, the Board finds that service connection is warranted for tinnitus based on the competent and credible evidence that the Veteran's tinnitus began during service and has existed since. The Board acknowledges that the opinion from the VA examiner is unclear. The examiner first said tinnitus was due to the Veteran's artillery service, but later said it was due to noise exposure, a condition which the RO noted it had previously determined was not service connected. The examiner opined that the Veteran's tinnitus is associated with his hearing loss, but the examiner was not asked to provide an opinion on whether the Veteran's hearing loss was related to service because the RO made a determination that the Veteran's hearing loss preexisted service. In addition, 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). Thus, the VA examiner's opinion regarding the Veteran's tinnitus is of limited probative value. The Board finds the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to service. The competent and credible evidence of record demonstrates that the tinnitus started in service; that he was exposed to acoustic trauma in service; that he was not exposed to occupational noise exposure post-service; and that he has experienced tinnitus since service. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). ORDER As new and material evidence has been received, the claim of entitlement to service connection for bilateral hearing loss is reopened, and the appeal, to this extent, is granted. Entitlement to service connection for tinnitus is granted. REMAND Prior to considering the claim of service connection for bilateral hearing loss on the merits, further development of the record is necessary to comply with VA's duty to assist in the development of facts pertinent to the claim. 38 C.F.R. § 3.159. While the Veteran was afforded a VA audiology examination in July 2010, the examiner was not asked to provide an opinion on the etiology of the Veteran's hearing loss because the RO made a determination that the Veteran's hearing loss preexisted service. The RO made this determination based on the Veteran's enlistment audiometry, however, as noted in the decision to reopen, the same enlistment examination did not note any defects and the Veteran was given a normal profile. On remand, the examiner should review the Veteran's enlistment, reenlistment and separation examinations and give an opinion on whether the Veteran's hearing loss preexisted service and if so, whether it was aggravated during service. The Veteran also submitted a letter from T. M., finding that audiometry tests conducted during service were inconsistent, but given the Veteran's "constant service in the presence of 50 KW generators without any ear protection, the profound loss in the 3 to 8 thousand Hz range," in his opinion was "very obviously associated with [the Veteran's] service." T.M. indicated that the 4000 Hz to 8000 Hz frequencies are rarely so severely affected and opined that the Veteran's service "with large diesel generators did his hearing severe damage over the three years of active service." A medical opinion is needed to decide the claim. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of the bilateral hearing loss. The Veteran's claims file and any pertinent records should be made available to the examiner for review in connection with the opinion. Based on the examination and review of the record, the examiner should respond to the following: (a) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had hearing loss that existed prior to his entry into active duty? (b) If the answer is yes, does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the preexisting hearing loss was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's hearing loss had its onset in service? 2. Thereafter, review the record and readjudicate the claim of service connection for bilateral hearing loss. If the claim remains denied, issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond before the case is returned to the Board. 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). 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