Citation Nr: 1336050 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-26 552A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral hearing loss disability. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for tinnitus. 3. Entitlement to service connection for a bilateral hearing loss disability. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps (USMC) from August 1966 to August 1968 and service in the USMC Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, denying reopening of the claims for service connection for a bilateral hearing loss disability and tinnitus. Although the RO has determined that the Veteran did not submit new and material evidence sufficient to reopen his claims, the Board must determine on its own whether new and material evidence has been submitted to reopen the claims. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). In December 2012, the Veteran submitted a statement in support of his claim without a waiver of initial RO consideration. 38 C.F.R. § 20.1304(c) (2013). However, there is no prejudice to the Veteran in the Board's adjudication of his claim because his statement largely reiterated evidence that was already of record. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. The issues of entitlement to service connection for a bilateral hearing loss disability 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. FINDINGS OF FACT 1. In a January 2004 rating decision, the VA RO in Chicago, Illinois, denied the claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus. 2. Evidence associated with the claims file since the January 2004 rating decision includes evidence that is new and material. CONCLUSIONS OF LAW 1. New and material evidence was received to reopen a claim of entitlement to service connection for a hearing loss disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. New and material evidence was received to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Board notes that the Veteran has been provided all required notice pertaining to his claim to reopen his 2003 claims for service connection for a bilateral hearing loss disability and tinnitus, and that the issue of whether new and material evidence was received has been resolved in the Veteran's favor. The Board therefore finds that no further development is needed, and that the Veteran will not be prejudiced by the Board's adjudication of his claim, as any error in notice or development with respect to that aspect of the claim would be harmless. See Bernard v. Brown, 4 Vet. App. 384 (1993); 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). II. Merits of the Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection may also be granted for chronic disabilities, such as sensorineural hearing loss, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In such instances, service connection for sensorineural hearing loss may be established based on a continuity of symptomatology from the time of manifestation. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a) , such as sensorineural hearing loss). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). A claim that is decided by an RO or the Board and not appealed within the required period is considered final and cannot be reopened unless new or material evidence is presented. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1100, 20.1103, 20.1104 (2013). When determining whether the Veteran has submitted new and material evidence, the Board will consider only that evidence that was added to the record after the last final denial of the prior claim. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for reopening a claim is low and does not require the claimant to present new and material evidence regarding each unproved element of the prior claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Evidence is new if it was not previously submitted to agency decisionmakers, and it is material if, by itself or in consideration with prior record evidence, it relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or redundant of the evidence that was of record at the time of the claim's prior final denial, and it must also raise a reasonable possibility of substantiating the claim. Id. The credibility, but not the weight, of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran filed claims for entitlement to service connection for a bilateral hearing loss disability and tinnitus in May 2003. The RO denied both claims in January 2004, citing a lack of evidence of hearing loss or tinnitus during service and a lack of evidence of a nexus. The January 2004 rating decision became final because, while the Veteran filed a notice of disagreement (NOD) in January 2005, he did not file a substantive appeal for either claim within 60 days of receipt of notice of the August 2005 Statement of the Case. 38 C.F.R. §§ 3.104, 19.32, 20.302 (2013). Relevant medical evidence at the time of the January 2004 rating decision included: service treatment records (STRs) from August 1966 to August 1968, which showed the Veteran had hearing impairment upon enlistment but had not complained of or received treatment for hearing loss or tinnitus; May 2002 private treatment records from St. Francis Medical Center, which showed the Veteran had a hearing loss disability for VA purposes under 38 C.F.R. § 3.385; and an October 2003 VA examination report, which showed the Veteran was diagnosed with hearing loss, but that the VA examiner had opined it was less than likely related to service because he had normal hearing upon discharge. Relevant lay evidence of record at the time of the January 2004 rating decision included: the Veteran's statements in the May 2002 private treatment records that he had a history of noise exposure from serving in the military with no ear protection; and his statements from his May 2003 informal claim that he served in Vietnam, and was stationed at Khe Sanh during the Tet Offensive and Con Thien, an artillery base, and under constant mortar and rifle fire. It also included his statements in the October 2003 VA medical examination report that his hearing loss had become noticeable during the prior 7-8 years; he had occasional occupational noise exposure over 35 years of auto electrical work but no recreational noise exposure; he noted a high-pitched cricket sound in both ears that he felt had begun 5-10 years prior; but that his tinnitus was heard only in very quiet situations and was not problematic or bothersome. Relevant medical evidence received since the January 2004 rating decision includes VA treatment records from 2008 that indicate the Veteran had follow-up care for sensorineural hearing loss, and a VA examination report from May 2011. The May 2011 VA examiner diagnosed the Veteran with bilateral normal hearing sloping to mild, moderate, severe, and profound (R) degree of sensorineural hearing loss, with normal to severe sensorineural hearing loss in his left ear and normal to profound sensorineural hearing loss in his right ear. His Maryland CNC word list speech recognition score was 92 percent for his left ear and 94 percent for his right ear, and an audiogram showed puretone thresholds at or above 40 decibels in both ears at frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz. The May 2011 VA examiner opined that the Veteran's bilateral hearing loss is less likely than not caused by, a result of, or related to noise exposure in his military occupation because the Veteran's entrance and exit examinations did not show a significant shift in thresholds; he first noticed hearing difficulty only 10 years prior; and he had worked as an auto mechanic for many years until 2008. The May 2011 VA examiner also opined that his tinnitus is less likely than not caused by, a result of, or related to noise exposure in his military occupation because he could not estimate its onset, was not concerned about it, and was not aware that he was claiming service connection for tinnitus, but that it was as likely as not a symptom related to his bilateral hearing loss. Relevant lay evidence received since the January 2004 rating decision includes: the Veteran's statements from his January 2005 NOD that he was constantly around noise at all times because his military occupational specialty (MOS) was infantry combat; his assertions in his October 2008 claim to reopen that he was never given a hearing examination during his separation examination and had not been exposed to loud noises during his post-military career; a September 2009 buddy statement, wherein Mr. S reported that the Veteran had engaged the enemy during the Siege of Khe Sanh and had been subject to mortars, artillery, rockets, and small arms fire; the Veteran's November 2009 application for a Combat Action Ribbon, which contains maps and photographs and a narrative description of events in Vietnam; his statements in a November 2009 Hearing Loss and/or Tinnitus Questionnaire that exposure to noise from combat action during the defense of Khe Sanh and defense of an artillery base had caused his hearing loss and/or tinnitus; and his statements in his November 2009 notice of disagreement (NOD) that his work environment should not have caused his hearing loss because he had worked as an automotive electrical repairman, had not used impact tools, and was apart from mechanics that used impact tools. It also includes his statements in the May 2011 VA examination report that his wife had said his hearing problem had existed since service and he remembered having trouble understanding music lyrics for many years; his wife's October 2011 statement, wherein she reported he has had difficulty hearing conversations since she first met him in February 1969, that he had always cupped his hands to capture sound, and that she had often heard noises that he could not hear; his statements from his October 2011 substantive appeal that he has had hearing difficulty for 40 years and that, in retrospect, he believed he has had significant hearing loss since being in combat situations, under artillery fighting, and continuous repetitive explosive situations in Vietnam; and his statements from his October 2011 substantive appeal that during his post-separation career he had used small hand tools and electronic instruments to do light maintenance, electrical testing, and electrical engine control diagnostics in a part of his work facility that was separated by several walls. The Board finds the Veteran has presented new and material evidence sufficient to reopen his prior claim for service connection for a bilateral hearing loss disability. In both his October 2009 claim to reopen and the May 2011 VA examination report, the Veteran asserted that he was never given a hearing test during his separation examination. In his October 2011 substantive appeal, he also asserted that he has had hearing loss for 40 years, ever since being in combat. In his wife's October 2011 statement, she reported that he has had difficulty hearing normal conversation since she first met him in February 1969, six months after his separation from service. This evidence is new because it was not of record when the January 2004 rating decision was issued, and it is material because the Veteran's prior claim was denied in part because he had not shown hearing loss upon separation from service or within the relevant presumptive period. It is also not cumulative or redundant of evidence already of record, and it raises a reasonable possibility of substantiating his prior claim. The Board also finds that the Veteran has presented new and material evidence sufficient to reopen his prior claim for service connection for tinnitus. The May 2011 VA examiner opined that the Veteran's tinnitus was as likely as not a symptom related to his bilateral hearing loss. This medical evidence is new because it was not of record when the January 2004 rating decision was issued, and it is material because the Veteran's prior claim was denied in part due to insufficient evidence of a nexus between his tinnitus and his active service. It is also not cumulative or redundant of evidence already of record, and it raises a reasonable possibility of substantiating his prior claim. Accordingly, the claims to reopen the Veteran's prior claims for entitlement to service connection for a bilateral hearing loss disability and tinnitus are granted. (Continued on the next page) ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hearing disability, and to that extent only, the claim is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus, and to that extent only, the claim is granted. REMAND The Board remands the claims seeking service connection for a bilateral hearing loss disability and tinnitus for additional development because the VA medical examiners' opinions are inadequate. "[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one." Barr, 21 Vet. App. at 311. An adequate medical opinion must consider all relevant evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). It must consider the veteran's prior pertinent medical history and must also include clear conclusions, supporting data, and a reasoned medical explanation. Barr v. Nicholson, 21 Vet. App. 303, 311; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, it must consider all raised theories of entitlement. Stefl, 21 Vet. App. at 120. Service treatment records (STRs) contain audiograms from both the Veteran's May 1966 enlistment and August 1968 discharge examinations. Without converting the 1966 enlistment examination audiogram from ASA values to ISO (ANSI) units, it shows values between zero and fifteen at all tested frequencies. After conversion to ISO (ANSI) units, however, the audiogram appears to show that, while the Veteran did not have a hearing disability as defined under 38 C.F.R. § 3.385 (2013), he did appear to have hearing impairment upon enlistment into service. Specifically, the audiogram showed decibel level thresholds of 25 at 2,000 Hertz for both ears. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is between 0 and 20 decibels, while anything above 20 decibels indicates some degree of hearing loss). In October 2003, VA provided the Veteran a VA examination and obtained an opinion regarding the existence and etiology of his bilateral hearing loss disability. The October 2003 VA examiner opined that it was less than likely that the Veteran's hearing loss is related to service because he had normal hearing upon discharge. The Board finds this opinion inadequate, as it does not address the need to convert the 1966 enlistment examination audiogram results to ISO values, whether there was a shift in the Veteran's hearing during service, or the Veteran's lay testimony. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay evidence is competent to establish features or symptoms of injury or illness). In May 2011, VA provided the Veteran a second VA examination and obtained a second opinion regarding his bilateral hearing loss. The May 2011 VA examiner opined that the Veteran's bilateral hearing loss disability is less likely than not caused by, a result of, or related to noise exposure in his military occupation because his entrance and exit examinations did not show a significant shift in thresholds; he had not noticed any hearing difficulty until only 10 years prior; and he had worked as an auto mechanic for many years until 2008. Regarding an in-service shift in thresholds, the May 2011 VA examiner found that the difference between the 1966 and 1968 audiogram results fell within acceptable test-retest variation, and that if the enlistment examination audiogram thresholds were to be converted to ISO values, "there may be no shift at all between entrance and exit" audiograms. The Board also finds this opinion inadequate. While the May 2011 VA examiner did address the shift in the Veteran's hearing and the need to convert the 1966 audiogram results, she did not appear to consider the actual post-conversion results. Instead, it appears she estimated that there "may not be any shift at all" between the converted 1966 audiogram results and the 1968 audiogram results. Since the May 2011 VA examiner did not consider the actual converted ISO threshold values, she also did not address the impaired hearing shown at 2,000 Hz in both ears in the 1966 enlistment examination. Consequently, the May 2011 VA examiner's opinion did not address whether the Veteran's preexisting hearing impairment was aggravated, or permanently increased in severity, during his military service and, if so, whether there is clear and unmistakable evidence that any aggravation was due to the natural progress of his disease or otherwise not due to his active service. Regarding the Veteran's claim for service connection for tinnitus, the Board defers the issue pending the resolution of his hearing loss claim. The May 2011 VA examiner opined that the Veteran's tinnitus was as likely as not a symptom of his bilateral hearing loss. Consequently, the tinnitus claim is inextricably intertwined with the Veteran's hearing loss claim, as the decision on the claim for bilateral hearing loss could have a significant impact on the Veteran's claim for service connection for tinnitus. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Provide the Veteran with an addendum opinion by the same May 2011 VA examiner or, if unavailable, from another VA audiologist, to clarify whether the Veteran's hearing impairment upon induction into service was aggravated (permanently worsened) due to his active service. Provide the examiner with the claims file, including any pertinent evidence in Virtual VA/VBMS that is not already in the claims file. The examiner should review the claims file and provide an opinion, based on examination results and the record, regarding whether any preexisting hearing impairment increased in severity during service and, if so, whether there is clear and unmistakable (undebatable) evidence that the increase in severity was due to the natural progress of the disease or otherwise not caused by the Veteran's active service. In answering these questions, the audiologist should take into consideration the Veteran's competent and credible statements regarding his in-service noise exposure, the onset of hearing loss and tinnitus, and continuity of hearing loss since service as well as the other lay evidence of record. [Note: The Veteran's in-service noise exposure has been conceded]. The examiner should also consider the objective medical findings in the service treatment records. The audiologist should also convert any audiometric results using ASA standards to ISO-ANSI standards as appropriate in order to facilitate data comparison and discuss all in-service audiograms when forming his/her opinion. The examiner is advised that the absence of in-service evidence of hearing loss including on separation examination is not fatal to a claim for that disability; rather, service connection may be found with a showing of a current hearing loss disability and a medically sound basis for attributing such disability to service. If it is the opinion of the examiner that the Veteran's tinnitus is the result of any other process not related to in-service acoustic trauma, a rationale must be provided to fully explain why the current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss and tinnitus. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 2. The RO or AMC should undertake any additional development it deems warranted. 3. Then, the RO or AMC should readjudicate the claims on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond. If necessary, the case should then be returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs