Citation Nr: 1510397	
Decision Date: 03/12/15    Archive Date: 03/24/15

DOCKET NO.  13-08 961	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Whether new and material evidence has been submitted to reopen service connection for tinnitus.

3. Entitlement to an increased (compensable) rating for bilateral otitis externa. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel


INTRODUCTION

The Veteran served on active duty from June 1958 to May 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. 

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2014. A transcript is of record.

The issues of service connection for bilateral hearing loss and an increased rating for bilateral otitis externa are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. In a November 1966 rating decision, the RO denied the Veteran's claim for service connection for tinnitus because the evidence did not indicate any relationship between the current disorder and the Veteran's service. 

2. The evidence associated with the claims file subsequent to the November 1966 rating decision suggests a relationship between the Veteran's current tinnitus and service.

3. Resolving reasonable doubt in the Veteran's favor, the evidence indicates that the Veteran's tinnitus is related to service. 



CONCLUSION OF LAW

1. The November 1966 rating decision denying service connection for tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014).

2. The criteria for reopening the claim of service connection for tinnitus have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).

3. The criteria for entitlement to service connection for tinnitus have been met. 
38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d) (West 2014); see also 38 C.F.R. § 19.7 (2013) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2014). As the Board will grant both the Veteran application to reopen service connection for tinnitus and the underlying claim, there is no need to discuss VA's compliance with the duties to notify and assist. 

New and Material Evidence
And Service Connection

Previously denied claims may be reopened with the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156. "New" evidence is defined as existing evidence not previously submitted to agency decision makers. "Material" evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki,
24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118.

Regardless of the RO's determination as to whether new and material evidence has been submitted, the Board has a jurisdictional responsibility to determine whether a claim previously denied is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen a previously denied claim.

In order to prevail on the issue of service connection, generally, there must be 
(1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).

Reopening Service Connection for Tinnitus
And Service Connection for Tinnitus

The Veteran essentially contends that he developed tinnitus due to his in-service experiences with an artillery unit. Although the Veteran's Military Operational Specialty (MOS) was that of a chaplain's assistant, the Veteran's service personnel records indicate that he was assigned to an artillery division and the Veteran has indicated that he was exposed to artillery fire during service.

In a November 1966 rating decision, the RO denied service connection for tinnitus because the evidence did not indicate any relationship between the current disorder and the Veteran's service. At the time of that denial, the most probative evidence of record was an October 1966 VA medical examination report in which the Veteran reported experiencing ringing in his ears, but did not indicate when the ringing started.

Reviewing the evidence submitted since the November 1966 rating decision, in a November 2011 VA medical examination report, the Veteran reported experiencing tinnitus for several years, but did not recall the timing of the onset of the symptomatology. Subsequently, at the July 2014 Videoconference hearing, the Veteran stated that he started experiencing tinnitus after being exposed to artillery fire during service. In a March 2015 letter, a private examiner stated that the Veteran's tinnitus was likely initiated or aggravated by exposure to artillery noise during service. 

The Board finds that the newly submitted evidence is new, as it was not previously of record at the time of the November 1966 rating decision. Assuming the evidence's credibility, as is required when determining whether to reopen a claim, it is also material because it raises a reasonable possibility of substantiating the claim. Therefore, the claim is reopened.

In deciding a claim for service connection, the Board must review the evidence in its entirety. Reviewing the evidence not previously mentioned, the Veteran's service treatment records contain no notation indicating treatment or diagnosis for tinnitus during service. In a March 2012 addendum to the November 2011 VA medical examination report, a VA examiner stated that the Veteran's tinnitus was less likely than not related to service, because the Veteran s in-service duties as a chaplain's assistant carried a low probability of exposure to military noise and the Veteran was vague when asked to recall the onset of his tinnitus symptomatology. 

When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The presence of tinnitus is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Veteran has a currently diagnosed tinnitus disorder. The Veteran served as a chaplain's assistant in an artillery unit. Although the Veteran could not recall the date of onset of his tinnitus during his interview with the November 2011 VA examiner, the Veteran presented credible testimony before the Board indicating that he had experienced tinnitus since in-service exposure to artillery fire. The Board also notes that the first post-service reports of tinnitus occurred in October 1966, only five years after the Veteran's discharge from service. The record contains two medical opinions, one indicating that the Veteran's tinnitus disorder was related to service and the other indicating that it most likely was not. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection have been met. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).


ORDER

New and material evidence having been received, the appeal to reopen service connection for tinnitus is granted.

Service connection for tinnitus is granted. 


REMAND

The issues of service connection for bilateral hearing loss and an increased rating for bilateral otitis externa are REMANDED for the following action:

1. Obtain and associate with the claims file all outstanding records of VA and private treatment for the Veteran's bilateral otitis externa and hearing loss. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. Ensure the appellant is provided the necessary authorization and release forms (VA Form 21-4142) to allow VA to obtain all confidential private treatment records. At a minimum, seek to procure all records regarding the Veteran's treatment from the office of Dr. Matthew Messina of North Dartmouth, Massachusetts. 

2. Schedule the Veteran for a VA audiology examination, to be performed by an appropriate VA examiner, to determine the nature and etiology of the claimed bilateral hearing loss disorder. The VA examiner should be provided access to the VA electronic claims file for review. The report compiled by such examiner should indicate whether access to the file was made available and whether the file was reviewed. 

In reviewing the record, the examiner should note the following:

	a. The service treatment records;

b. The November 2011 VA medical examination report, in which a VA examiner noted that the whisper tests provided to the Veteran during service were not considered to be a reliable means of testing by today's standards;

c. The March 2015 letter from a private examiner, indicating that the Veteran's bilateral hearing loss was likely initiated or aggravated by exposure to artillery fire during service; and

d. The Veteran's lay statements. 
 
Based on a review of all the evidence of record, to include service treatment records, private medical records, and the Veteran's own lay statements, the examiner should provide an opinion as to whether any hearing loss disorder had its onset during active service, within one year of service separation, or is related to any in-service disease, event, or injury, including conceded acoustic trauma resulting from exposure to artillery fire in service. 

A complete explanation for this opinion should be provided. The opinion should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for any conclusion made. 

Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability.

If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.

3. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected bilateral otitis externa. All indicated tests and studies shall be conducted. The VA examiner should be provided access to the VA electronic claims file for review. The report compiled by such examiner should indicate whether access to the file was made available and whether the file was reviewed.

The examiner shall report the nature and severity of all findings, manifestations, and/or complications due to the Veteran's bilateral otitis externa.

The examiner must provide reasons for any opinion given. If an opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.

4. After accomplishing any additional development deemed appropriate, readjudicate the claims for service connection for bilateral hearing loss and an increased rating for bilateral otitis externa. If the benefits sought in connection with the claims remain denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond.  

The Veteran has the right to submit additional evidence and argument on the 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 2014).



______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs