Citation Nr: 1338085 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-31 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. In November 2011, the claim was remanded for further development. FINDINGS OF FACT 1. Service connection for tinnitus was denied by an unappealed rating decision of September 2006. 2. Evidence received subsequent to the September 2006 rating decision raises a reasonable possibility of substantiating the claim of service connection for tinnitus. 3. The competent and credible evidence of record shows the Veteran has tinnitus as a result of service. 4. The evidence of record is in equipoise as to whether the Veteran's bilateral hearing loss was incurred in service. CONCLUSIONS OF LAW 1. The September 2006 RO decision which denied service connection for tinnitus is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a); 20.302(a), 20.1103 (2012). 2. Evidence submitted subsequent to the September 2006 denial of service connection for tinnitus, is new and material. 38 U.S.C.A. §§ 5107 , 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a) , 20.1103 (2012). 3. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309 (2012). Bilateral hearing loss is a result of active service. 1111, 1112, 1154(a), 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.303, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify As to the issues of whether new and material evidence has been submitted to reopen the claim for service connection for tinnitus and service connection for tinnitus and bilateral hearing loss, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). The question of whether a claimant has submitted new and material evidence to reopen a claim and the question of whether upon such reopening, a claimant is entitled to VA benefits, are questions relating to a single 'matter' for purposes of the Board's jurisdiction under 38 U.S.C.A. § 7104(a). Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Court held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 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. 38 C.F.R. § 3.156(a) . The Veteran's claim for service connection for tinnitus was denied in a September 2006 rating decision. The RO determined that the evidence of record failed to show a disability for which compensation could be established. Specifically, the Veteran stated he had tinnitus in his right ear and because there was no evidence in the service treatment records showing tinnitus and the right ear hearing loss was not found to be characteristic of noise-induced hearing loss, tinnitus was denied. Notice was provided to the Veteran in an October 2006 letter. No appeal was made within one year of the notice of denial. The September 2006 denial thereby became final. The Veteran filed to reopen the claim for tinnitus in May 2008. An October 2008 rating decision continued to deny the claim. The evidence received since the September 2006 final decision includes internet reports on tinnitus and hearing testimony provided during a May 2011 Travel Board hearing. The internet reports on hearing loss and tinnitus were general articles on the subject. These articles were new as they had not been presented before. However, they were not material because they did not relate to an unestablished fact necessary to substantiate the Veteran's claim. These articles were generalized in nature, and did not relate to anything specific to the Veteran's claim that he had tinnitus related to service. Therefore, this evidence was not new and material. The May 2011 Travel Board hearing testimony is new and material. The hearing testimony presented by the Veteran indicates the onset of his tinnitus. He related that he had chronic tinnitus, and he related that the tinnitus occurred during service from the concussive explosions occurring from the howitzers he fired. He testified that he was a gunner and assistant gunner in Vietnam, and prior to Vietnam, he was in continuous training with the howitzers. He related no hearing protection was used. This testimony, related to the onset of his tinnitus, is evidence of an unestablished fact. Therefore, according to Shade, this evidence, is new and has never been before agency decisionmakers before, is also material, because it would raise a reasonable possibility of substantiating the claim because when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Therefore, since the Board finds this evidence to be new and material, the claim will be reopened. Having reopened the claim, the Board finds the claim may now be given a de novo review. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including other organic diseases of the nervous system, such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Pursuant to 38 U.S.C.A. § 1154(b) (West 2002), with respect to combat veterans, "[VA] shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (2013). However, the Court has further held that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); Kessel v. West, 13 Vet. App. 9 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Hearing Loss and Tinnitus The Veteran asserts that service connection for bilateral hearing loss and tinnitus is due to service incurrence. He states that he was a gunner for a Howitzer in an artillery battalion and he also was a radioman for that battalion, while in Vietnam. He adds that he has had bilateral hearing loss and ringing in the ears (tinnitus) since service to the present. Service treatment records show the Veteran's hearing was noted to be normal based on preinduction examination in August 1966. There were no audiometric hearing test performed on separation examination in October 1968. The evidence of record also shows that the Veteran served in the US Army and that he was in a Howitzer battalion. He received a Vietnam Campaign Medal and a Vietnam Service Medal. The medical evidence of record shows that in September 2006 and December 2011, VA audiology examinations showed that the Veteran's audiology examinations met the auditory thresholds required bilaterally for impaired hearing. See 38 C.F.R. § 3.385. The VA audiology examination of October 2008 showed impaired hearing thresholds were met only for his right ear. The September 2006 VA examination indicated that it was less likely as not that the Veteran's bilateral sensorineural hearing loss was the result of any activity during military service. The examiner stated that the Veteran first became aware of his impaired hearing in 1988 but separated from service in 1968. He also stated that there was no mention of hearing loss in the Veteran's service medical records. The October 2008 VA audiology examination found left ear hearing within normal limits for VA purposes. The right ear hearing loss did not, according to the examiner, follow a pattern of hearing loss due to noise exposure, and the Veteran reported ear pain and drainage. As such, the examiner stated that an opinion in this regard needed to be a medical opinion by an otolaryngologist. Pursuant to the Board's remand in November 2011, the Veteran underwent another VA audiology examination. This examination, again performed by an audiologist, indicated that it was less likely as not related to military service. She opined that the Veteran had no complaints of acoustic trauma, hearing loss, tinnitus, or other ear related complaints in his service medical records. She also opined that the current pattern of the Veteran's hearing loss did not correlate with that of hearing loss of noise exposure. She directed her findings to a post service report (September 2000) indicating endolymphatic hydrops (also described as Meniere's disease). It was her opinion that the current pattern of hearing loss and speech discrimination closely correlated to that of hearing loss and speech discrimination due to endolymphatic hydrops. Associated with the claims folder were copies of a number of letters from the Veteran's wife, sisters-in-law, friends, and daughter related to his hearing loss. Specifically, a sister-in-law and his wife reported of knowing of the Veteran's hearing loss since his separation from service in 1968. Private treatment records from 2000 showed the Veteran received treatment of hearing loss, otitis media, and chronic tinnitus. Also of record are VA treatment records since 2005 which show treatment for hearing loss. Specifically noted is an assessment of a peripheral hearing disorder. An assessment at that time (August 2005) indicated the Veteran had asymmetric hearing loss and episodic vertigo symptoms consistent with post traumatic endolymphatic hydrops. The examination, which was reviewed by an otorhinolaryngologist, indicated that concussive noise during military exposure was likely the inciting event. The Veteran testified at a Travel Board hearing in May 2011. The Veteran indicated that he served in Vietnam in a Horwitzer unit as the gunner, assistant gunner, and radioman. He also stated that because of the concussive noise of the howitzers he had constant tinnitus and it affected his hearing. He stated that after service, he was treated by several doctors, one which closed his practice and the others retired. He related that he had the artillery noise exposure due to howitzers in Vietnam and throughout his training in service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 C.F.R. §3.385 . The Board points out, however, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385 , as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As to the Veteran's hearing loss claim, the Board finds sufficient evidence of hearing loss for VA purposes. Such was clearly established on at least 2 VA examinations. There is also evidence of noise exposure in service. The Veteran's DD 214, shows service in a howitzer battalion and service in Vietnam. It is true that his hearing loss was not demonstrated in service via his service treatment records. The Veteran does not necessarily argue the contrary. However, as indicated, the fact remains that he did have significant noise exposure in service, which amounts to an in-service injury/event. Shedden elements (1) and (2) are thereby met. As for crucial element (3) of the Shedden analysis, a medical nexus, there are conflicting opinions. None are strong opinions. One audiologist indicates that the Veteran did not have hearing loss due to service because it was not indicated in his service medical records and the Veteran allegedly stated, according to this audiologist, that he did not notice hearing loss until 1988. Another audiologist, in 2008, stated that he could not make an opinion in this case, and that the skills of an otolaryngologist were needed. Although the Board remanded the claim for such an evaluation, the RO/AMC again had the Veteran examined only by an audiologist. This audiologist, also found that the hearing loss was indicative of a pattern of hearing loss due to endolymphatic hydrops, and not acoustic trauma. However, an otorhinolaryngologist, in August 2005, stated at that time that the Veteran did have post traumatic endolymphatic hydrops, and that concussive noise during military exposure was likely the inciting event. The positive evidence (August 2005 VA report) was aware of the Veteran's concussive noise exposure in service. He specifically indicated that concussive noise was likely the inciting event. The Veteran also discussed his exposure to concussive noise as a gunner during his Travel Board hearing. Conversely, while the one VA audiology report required the diagnosis of an otolaryngologist, the other, and most recent audiologist examination in December 2012, made the same findings (endolymphatic hydrops) as the VA specialist made in 2005. The Veteran is clearly competent to state that he experienced hearing loss in service, and that he continues to experience the residuals thereof. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). While it is true that the Veteran did not seek disability benefits for hearing loss for nearly 40 years after service, the Board finds no reason to question his credibility. It is also crucial to note that the Court has long-held that although a hearing loss disability is not established at separation from service, it may be established later 'by submitting evidence that the current disability is causally related to service'. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Given the foregoing, the August 2005 VA report is given more probative value than the September 2006, October 2008, and December 2011 VA reports, Thus, despite the lack of medical evidence of hearing loss at separation from service, based on the Veteran's present hearing loss, his clear exposure to concussive noise in service as a gunner in combat, and his and his family members statements as to the occurrence of his hearing loss, and resolving all doubt in his favor, the Board finds that a grant of bilateral hearing loss is warranted. As to the Veteran's claim for tinnitus, the Board also finds sufficient evidence of tinnitus related to service. Tinnitus is subjective and the type of condition to which lay testimony is competent to diagnose. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); See Layno at 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The VA examiner based his conclusion that the Veteran's tinnitus was not caused by military service on the fact that there was no documentation of tinnitus in service and no history of tinnitus reported. However, as noted above, 38 U.S.C.A. § 1154(b) provides a presumption for combat veterans with regard to injuries they experienced during combat. In this case, the Veteran stated in part, that he has had tinnitus since he served in combat in Vietnam. Although there are no service personnel records to show specifically that this is the case, his DD 214 does show that he served in Vietnam and the evidence of record shows he has recently received service connection for posttraumatic stress disorder for the same. This is consistent with the circumstances and conditions of combat, especially for a Veteran who served in the field as a radio operator and as a gunner of howitzers. Ringing in the ears (tinnitus) is a symptom that a lay person such as the Veteran is competent to report; and the Board has found no reason to doubt his credibility with regard to his report that he experienced tinnitus in his ears while in service. Although the examiner reported that he had no history of tinnitus, the Veteran has alleged differently. The Veteran has asserted that his tinnitus began in service and it has continued since that time. This assertion is considered to be credible, and is sufficient to form the basis for service connection. As such, service connection for tinnitus is warranted. ORDER New and material having been submitted, the claim for service connection for tinnitus is reopened, and granted to that extent. Service connection for bilateral hearing loss is granted. Service connection for bilateral tinnitus is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs