Citation Nr: 1342428	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO. 11-04 779	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


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 service connection for bilateral hearing loss.

4. Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission



ATTORNEY FOR THE BOARD

Michael J. Adams, Associate Counsel


INTRODUCTION

The Veteran had active service from May 1963 to May 1967.

These matters come 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 Waco, Texas.

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. An April 2006 Board decision denied the Veteran's claims to establish service connection for bilateral hearing loss and tinnitus; the Veteran appealed that decision and it was affirmed by the U.S. Court of Appeals for Veterans' Claims (Court) by a decision in February 2008.

2. Evidence received since the final April 2006 Board decision is new and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus.

3. The Veteran has been diagnosed with right ear tinnitus.

4. The Veteran experienced in-service noise exposure.

5. The most probative evidence of record reflects that the Veteran's tinnitus was at least as likely as not caused by service.

CONCLUSIONS OF LAW

1. The April 2006 Board decision is final with respect to the Veteran's claim to establish service connection for bilateral hearing loss.  38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2006); currently, 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2013).

2. The April 2006 Board decision is final with respect to the Veteran's claim to establish service connection for tinnitus.  38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2006); currently, 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2013).

3. Evidence submitted to reopen the claim of entitlement to service connection for bilateral hearing loss, is new and material, and the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).

4. Evidence submitted to reopen the claim of entitlement to service connection for tinnitus, is new and material, and the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).

5. The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VCAA Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a) ; 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (ie., describes what is meant by new and material evidence under either the old or new standard); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. 

In the decision below, the Board has reopened the Veterans's claims of entitlement to service connection for hearing loss and tinnitus.  The Veteran's claim for servce connection for hearing loss has been remanded and the claim for service connection for tinnitus has been granted.  Therefore, regardless of whether the VCAA duties to notify and assist have been met in this case with regard to his claims to reopen and his service connection claims involving hearing loss and tinnitus, no harm or prejudice to the Veteran has resulted.  As such, the Board concludes that any defect in providing notice and assistance to the Veteran is at worst harmless error in that it does not adversely affect the essential fairness of the Board's adjudication of the claim.  Conway  v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

II. Service Connection - General

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303.  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).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).

Service connection may also be granted for an organic disease of the nervous system, such as tinnitus, when it is manifested to a compensable degree within one year of separation from service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319 at 321 (2007).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Hickson element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; 38 C.F.R. § 3.303(b).

III. New and Material Evidence

Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108 ]."  38 U.S.C.A. § 5103A (f) (West 2002).  Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim.  38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996).

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.  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) (2013).

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim.  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 Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2012).

Pertinently, the Veteran's bilateral hearing loss and tinnitus claims were previously denied in the final April 2006 Board decision because evidence of record did not reflect that either the hearing loss or tinnitus were caused by service.  The April 2006 Board decision was affirmed on appeal by a Court decision dated February 20, 2008.  As such, the April 2006 Board decision is final with respect to these claims.  38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2006); currently, 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2013).

With respect to the Veteran's bilateral hearing loss and tinnitus, evidence submitted and obtained since the April 2006 Board decision includes the Veteran's lay statements made in February 2011, October 2011, and March 2012, asserting that his hearing problems were caused by his military noise exposure.  The Veteran also submitted a December 2011 private medical treatment report and a December 2011 private medical opinion which also indicate that the Veteran's hearing loss and tinnitus were related to service.  This evidence is "new," as it had not been previously considered by VA, and "material" as it addresses an element of service connection which was missing at the time of the prior final denial, a nexus to service for the disabilities at issue.  In this regard, the Board recognizes that the additional evidence is presumed to be credible for the purpose of reopening the claim.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  Hence, the additional evidence, considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran's claims.  The Board thus finds that new and material evidence has been received to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus.  On that basis, the claims are reopened.

IV. Tinnitus

The Veteran is currently seeking service connection for tinnitus (as noted above, his reopened claim for service connection for hearing loss is being remanded for development).  He had active service in the U.S. Navy.  His DD-Form 214 reflects that his military occupational specialty was Boatswain  At a VA examination in July 2010, it was confirmed that the Veteran has constant right ear tinnitus.   Additionally, a December 2011 private medical report also diagnosed tinnitus.

The Court of Appeals for Veterans Claims (Court) has held that lay evidence is competent and may be sufficient to establish a diagnosis of a condition when 1) a lay person is competent to identify the medical condition; 2) the lay person is reporting a contemporaneous medical diagnosis; or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Court has specifically held that tinnitus is capable of lay observation.  See Charles v. Principi, 16 Vet. App. 370 (2002).

In support of his claim the Veteran has asserted that he was exposed to loud noises in service and attributes his current and tinnitus to that exposure.  Specifically, in his February 2011 Form-9, the Veteran asserted his tinnitus was the result of working the gun mounts where he loaded the powder and projectiles prior to firing.  The Veteran has not asserted that his tinnitus began in service.

In a case where a veteran is seeking service connection for any disability, due consideration must be given to the places, types, and circumstances of the veteran's service.  38 U.S.C.A. § 1154(a) (West 2002).  As a Boatswain it is likely that the Veteran was exposed to loud noises to include firing of artillery; thus, noise exposure is consistent with the conditions of his active military service.  Accordingly, the Board finds that the Veteran's reported history of in-service acoustic trauma is credible. 

The Board finds that competent and credible evidence of record shows that the Veteran's current tinnitus is related to the acoustic trauma in service.  In this regard, the Board observes that the Veteran does not contend, and the evidence does not otherwise show, that his tinnitus began during military service or that he has had a continuity of symptomatology since service.  The Veteran's service treatment records do not reveal any complaints or diagnosis of tinnitus or ringing in his ears during service.  An April 1980 report of medical history reveals that the Veteran endorsed a history of ear, nose, and throat trouble.  However, no report of tinnitus or ringing in the ears was noted at that time.  Furthermore, in a May 1993 report of medical history the Veteran did not report a history of ear, nose, or throat trouble.  At VA examinations in June 2002, October 2005, and July 2010 the Veteran reported that he did not know the date of onset or the etiology of his tinnitus.  The first documented evidence of tinnitus is his January 2001 claim for compensation, approximately 34 years after military service.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a veteran is competent to testify as to the presence of tinnitus).  The first evidence of a medical diagnosis of tinnitus is in the June 2002 VA examination report.  While receiving private medical treatment in December 2011 the Veteran reported experiencing tinnitus over the years but did not report experiencing tinnitus in service or since service.  A March 2012 correspondence reflects that the Veteran believes his in-service acoustic trauma is the source of his tinnitus but that he developed tinnitus as he aged after service.  Thus, there is no evidence or allegation of tinnitus being present during service, or continuity of symptomatology since service. 

However, the record reflects that the Veteran's tinnitus is etiologically related to his in-service acoustic trauma.  The record contains three VA examinations which took place in June 2002, October 2005, and July 2010.  At the June 2002 and October 2005 examinations, the examiners opined that there was insufficient evidence to render an opinion without resorting to speculation.  The basis for the statement was not provided by either examiner.  At the July 2010 examination, the examiner opined that the available information was insufficient to support the claim, or to provide a reasonable assertion that the current tinnitus was related to his military service, without resorting to speculation.  As bases for the opinion, it was noted that the service records were negative as to any documentation of tinnitus, and that there was no documentation in the service records to provide a nexus to current tinnitus.

The Court in Jones held that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  Here, the June 2002 and October 2005 examiners reviewed the complete record and concluded that they did not have sufficient information to render an opinion.  As no basis was provided for the inability to render an opinion, the examinations are not adequate.  In contrast, the July 2010 examiner opined that the evidence of record was not sufficient to support the claim, and specifically noted the absence of documentation of tinnitus in service, or of a nexus to service.  However, the July 2010 opinion is also not adequate for adjudication as it failed to address the lower threshold standard for service connection of whether it is at least as likely as not that current tinnitus is etiologically related to service.  As the examiners did not provide an adequate opinion as to whether the Veteran's tinnitus is etiologically related to service, their opinions neither weigh for or against the Veteran's claim.

The December 2011 private medical report does contain a nexus opinion.  The physician's opinion, that tinnitus is secondary to hearing loss and that 25 percent of the Veteran's hearing loss and tinnitus are the result of military noise exposure, contains no supporting rationale.  Specifically, the physician does not state how he arrived at his conclusion that 25 percent of the Veteran's tinnitus and hearing loss is the result of military noise exposure.  An adequate medical examination "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions" and must "provide sufficient detail for the Board to make a fully informed evaluation of whether direct service connection is warranted."  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Thus, the Board finds that this opinion is of minimal probative value as the private physician did not provide an adequate supporting explanation or rationale for his opinion.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Nonetheless, despite the low probative value given to the private medical opinion, the Board finds that the medical evidence is sufficient to support a finding that the Veteran's tinnitus is, at least in part, caused by acoustic trauma during service.  As described there are no negative medical opinions in this case and no evidence that would contradict the private physician's opinion.  The Veteran has denied occupational (he asserts that he wore hearing protection at all times at his civilian employment) and recreational noise exposure outside of the military.  He has also consistently and credibly claimed that his tinnitus is the result of in-service acoustic trauma.  While the Veteran lacks the medical expertise to provide a competent nexus opinion, his assertions reflect that there were no intervening causes for his tinnitus and thus, carry some probative value.

Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that the evidence supports entitlement to service connection for tinnitus.

ORDER

New and material evidence having been submitted, the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus are reopened and to that extent only, the appeal is granted.

Entitlement to service connection for tinnitus is granted.

REMAND

Remand is required to obtain a VA audiological examination in order to ascertain whether the Veteran's currently diagnosed bilateral hearing loss either began during service or was otherwise caused by service.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Here, a VA audiological examination was conducted in July 2010 that confirmed the presence of bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385.  Following a review of the claims file and examination, the VA examiner opined that the Veteran's hearing was normal at enlistment with hearing thresholds of no greater than 10 decibels in each ear.  The Board notes that service department reports of audiometric testing dated prior to November 1, 1967 are presumed to have been reported in American Standards Associates (ASA) units, unless otherwise indicated.  It is apparent that the July 2010 VA examiner did not convert the May 1963 pure tone threshold results to International Organization for Standardization (ISO) units which would result in the following thresholds:


Hertz

500
1000
2000
3000
4000
6000
Right
25
20
15
20
15
Not tested
Left
25
20
15
15
10
20

In this instance, the July 2010 VA examiner stated that there was no evidence of hearing loss at the time of enlistment and that no threshold exceeded 10 decibels bilaterally.  The Board notes that 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, 157 (1993).  As described above, once converted to ISO units the Veteran's threshold levels for the left and right ear exceeded 10 decibels at all frequencies at the time of enlistment.  Bilateral ear thresholds for the 500 Hz range also exceeded 20 decibels, indicating some degree of hearing loss.  As such, the examiner's opinion is based on a factual inaccuracy and thus requires clarification.  Therefore, remand is required to obtain an adequate VA examination.  See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

Accordingly, the case is REMANDED for the following action:

1.  Return the Veteran's case file to the examiner who conducted the July 2010 VA examination, or if he is not available, to another examiner.

Following a review of the claims file, including the July 2010 audiology examination report and this remand, the VA examiner should offer the following opinion:

Is it as least as likely as not (50 percent or greater degree of probability) that the Veteran's current bilateral hearing loss was the result of his confirmed military noise exposure?  In rendering the requested opinion, the examiner must consider the audiogram results for the May 1963 enlistment examination as converted to ISO units.  The examiner should also note the Veteran's statements concerning the onset of his symptoms, use of hearing protection post-service, and any other evidence relevant to diagnosing the etiology of the Veteran's hearing loss.

The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.  If the requested opinion cannot be provided without a new examination, one should be scheduled.  A complete rationale must be provided for any opinion or conclusion expressed.

2.  After completion of the foregoing and all other necessary development, adjudicate the reopened claim for service connection for bilateral hearing loss, de novo.  If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration.

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).


____________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs