Citation Nr: 1340338	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  12-09 957	)	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 submitted to reopen the claim of service connection for a bilateral hearing loss disability.  

2.  Whether new and material evidence has been submitted to reopen the claim of service connection for a tinnitus disability.  

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States




ATTORNEY FOR THE BOARD

C. Ozger-Pascu, Associate Counsel


INTRODUCTION

The Veteran had active military service from December 1965 to November 1968, including service in Vietnam.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal.  

The issue of 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 2005 rating decision, the RO denied service connection for hearing loss and tinnitus, respectively; after he was notified of the adverse determination and of his procedural and appellate rights, the Veteran did not appeal the rating decision and no new and material evidence was received within the applicable appellate period. 

2.  Evidence added to the record since the May 2005 rating action relates to unestablished facts necessary to substantiate the claim and raises the possibility of substantiating the service connection claims for hearing loss and tinnitus.

3.   Resolving reasonable doubt in favor of the Veteran, tinnitus had its onset during active duty service.


CONCLUSIONS OF LAW

1.  The May 2005 rating decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2013).

2.  Evidence added to the record since the May 2005 rating decision is new and material and the claims of entitlement to service connection for hearing loss and tinnitus are reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

3.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he files a claim for benefits.  The decision below reopens both claims and grants entitlement to service connection for tinnitus.  This is considered a full grant of the benefit sought.  As such, no further discussion of VCAA is necessary.


New and Material Evidence 

The Veteran seeks to reopen his previously denied claims of service connection for hearing loss and tinnitus.

Generally, a claim which has been denied in a final rating decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers.  "Material" evidence is evidence which, 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 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.

The May 2005 rating decision denied entitlement to service connection for tinnitus and hearing loss because there was no evidence of in-service tinnitus or hearing loss and no evidence of a current disability.  The Veteran did not appeal this decision.  Moreover, new and material evidence was not submitted during the appeal period.  Accordingly, the rating decision became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.156 (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

The evidence of record at the time of the 2005 rating decision included the Veteran's service treatment records and the Veteran's lay statements regarding the nature of his disabilities.   The Veteran filed his current application to reopen the claim in January 2010.  The evidence submitted after the 2005 rating decision includes lay statements from the Veteran providing additional details regarding his in-service duties which describe incidents of acoustic trauma as well as allege continued symptoms since service.   This is evidence is not only new, it is also material in that it shows evidence of in-service acoustic trauma, which was an element found lacking by the RO in the previous rating decision.  Accordingly, the Board finds that new and material evidence has been submitted to reopen the claims of entitlement to service connection for hearing loss and tinnitus.


Service Connection Analysis

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).  Service connection also may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d).  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection.  38 C.F.R. § 3.303(b).  The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331   (Fed. Cir. 2013).   The Board notes that tinnitus is not considered a chronic disability under § 3.309(a).  

To establish a right to compensation for a present disability, a claimant 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, 1167 (Fed. Cir. 2004).

VA regulations provide that 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.  38 U.S.C.A. § 1154(a).  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

As noted above, the Veteran asserts that he was exposed to acoustic trauma in service on a repeated basis.  Specifically, he asserts that he incurred acoustic trauma from gunfire and mortar rounds in service while serving as a radioman.  The Board finds the Veteran's allegations consistent with the circumstances of his service.  Accordingly, the Board finds the Veteran was exposed to acoustic trauma in service.  

The Veteran contends that he has experienced tinnitus since his exposure to acoustic trauma in service, when he began having a muffled and ringing sound in his ears.   The Board recognizes that the Veteran is competent to state that he experiences tinnitus, and that he has experienced tinnitus ever since service.  Charles v. Principi, 16 Vet. App. 370 (2002).   Thus, the Board finds that the Veteran has a current tinnitus disability and has experienced symptoms of tinnitus since his active duty military service.  

Although service connection for tinnitus cannot be established based on showing continuity of symptomatology, as noted above, the claim may be established if it is found that the disability had its onset in or is related to service or an event of service.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Veteran currently has tinnitus and the competent, credible and persuasive evidence of record sufficiently places the onset of this condition in service.   After resolving all reasonable doubt in the Veteran's favor, the Board finds that tinnitus had its onset in service. It follows that entitlement to service connection for tinnitus is warranted.


ORDER

New and material evidence has been presented and the claim of service connection for hearing loss is reopened.

New and material evidence has been presented and the claim of service connection for tinnitus is reopened.

Entitlement to service connection for tinnitus is granted.

REMAND

For the reasons explained below, the Board finds that the medical evidence of record is inadequate for establishing service connection for a hearing loss disability.   As such, a remand is required to obtain a new VA examination.

The VA audiology report of record from May 2010 is inadequate because the examiner stated that he could not complete the examination because the Veteran was not cooperative and thus his responses were not reliable.  The Veteran explained in his August 2010 Notice of Disagreement that he was not being deliberately uncooperative, rather, because the examiner did not give clear instructions and did not speak in front of him, the Veteran could not understand the instructions for the examination.   Giving the Veteran every benefit of the doubt, the Board finds that a new VA examination is warranted under these circumstances with a different examiner.  

Accordingly, the case is REMANDED for the following action:


1. Schedule the Veteran for a VA audiological examination with a different audiologist to determine whether he currently has a bilateral hearing loss disability.  The entire claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  All necessary tests should be performed and the results reported.

Based upon the examination findings, the claims file review, and the Veteran's own contentions, the examiner must address the functional effects of bilateral hearing loss on daily life and social and occupational functioning.  All opinions must be supported by a complete rationale.

2. The record should again be reviewed and the claim should be readjudicated.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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).

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. 2013).


______________________________________________
M. N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs