Citation Nr: 1618080 Decision Date: 05/05/16 Archive Date: 05/13/16 DOCKET NO. 09-35 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen service connection claim for a low back disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus, type 2. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Connally, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from May 1968 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Regional Office (RO) in Oakland, California. In November 2008, the RO denied entitlement to service connection for bilateral hearing loss, tinnitus, and hypertension. In October 2009, the RO denied entitlement to service connection for a low back disability. The Veteran's substantive appeal was timely received for each issue from the November 2008 rating decision. In November 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board notes that testimony was taken regarding the issue of entitlement to service connection for a low back disability even though no substantive appeal had been submitted. However, this does not deprive the Board of jurisdiction over this issue, and neither does the RO's lack of certification of this issue. See Evans v. Shinseki, 25 Vet. App. 7, 12 (2011); 38 C.F.R. § 19.35 (certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue). As the requirements for perfecting an appeal to the Board have been met with regard to these claims, which consist of the issues on which the Board took testimony, the Board will address them herein. 38 C.F.R. § 20.200 (2015) (an appeal consists of a timely filed notice of disagreement and, after a statement of the case has been furnished, a timely filed substantive appeal). The issues of entitlement to service connection for a low back disability and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A November 1970 RO decision that denied service connection for a low back disability was not appealed and the decision became final. 2. New and material evidence has been received since the November 1970 decision to substantiate the claim of entitlement to service connection for a low back disability. The newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim. 3. Bilateral hearing loss is etiologically related to in-service noise exposure. 4. The Veteran began experiencing symptoms of tinnitus while in service, and has continued to experience them since separation from service. CONCLUSIONS OF LAW 1. The November 1970 rating decision that denied the Veteran's claim of entitlement to service connection for a low back disability is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2015). 2. The criteria to reopen the service connection claim for a low back disability have been met. 38 U.S.C.A. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156. 3. The criteria to establish service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. The criteria to establish service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board acknowledges the Veteran's service to his country and is sympathetic to his medical conditions; however, the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant. See Owings v. Brown, 8 Vet. App. 17, 23 (1995). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Claim to Reopen Service Connection The Veteran originally filed a claim for entitlement to service connection for "back strain," in January 1970. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 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) (2015). 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). Regardless of the RO's determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO 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 this service connection claim. 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 VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The RO initially denied the claim in a November 1970 rating decision on the grounds that there was no evidence that the Veteran had a current disability. The Veteran did not appeal this decision and it became final as to the evidence then of record, and are not subject to revision on the same bases. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. However, since that time documents have been associated with the claims file that discusses a current diagnosis for a low back disability. This evidence includes a VA examination from February 2012 and Board Hearing testimony from November 2015 that had not previously been associated with the file. As these documents represent evidence not previously submitted to agency decision makers and relates to unestablished fact necessary to substantiate the claim, the Board finds that the additional evidence is new and material to reopen the service connection claim for a low back disability. Service Connection for Bilateral Hearing Loss and Tinnitus The Veteran contends that in-service noise exposure resulted in current bilateral hearing loss and tinnitus disabilities. Specifically, the Veteran endorses onset of hearing loss and tinnitus symptoms due to acoustic traumas he incurred from the use of firearms without the aid of hearing protection during service. According to the Veteran's DD 214, his primary department branch or class was "Artillery." The Board finds the Veteran's statements regarding noise exposure credible to the extent that they are consistent with the nature of his service as a member of "Artillery." However, exposure to acoustic trauma alone does not mandate that service connection be granted. Rather the noise exposure must be shown to have caused his current hearing loss or tinnitus disabilities, or to have caused chronic or continuous symptoms of either. 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 2014); 38 C.F.R. § 3.303(a) (2015). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Organic diseases of the nervous system, including sensorineural hearing loss and tinnitus, are "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Where a veteran develops certain chronic diseases, such as an organic disease of the nervous system (including sensorineural hearing loss and tinnitus), to a degree of 10 percent or more within one year of separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA considers normal hearing to be from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, 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, 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. Service treatment records reflect no in-service complaints or treatment referable to hearing loss or tinnitus, and on entrance examination in May 1968, the Veteran's hearing was essentially normal. See Hensley v. Brown, 5 Vet. App. 155 (1993). His December 1969 separation examination does not contain any audiometric findings. The Board has been presented with conflicting, competent opinions regarding the etiology of hearing loss. Following audiological testing verifying a current hearing loss disability, a review of the claims file, and consideration of the Veteran's lay history in January 2008, the VA examiner concluded that hearing loss was not related to service because the Veteran had only "13 months of reported noise exposure during active duty and 34 years of noise exposure as a civilian despite report of ear protection." However, the Court has held that an absence of in-service hearing loss was an insufficient reason, in and of itself, to deny service connection for hearing loss. See Hensley v. Brown 5 Vet. App. 155, 163 (1993) (service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service). Additionally, the VA examiner noted that the Veteran was only provided a whisper voice test and explained "a whisper voice test does not provide frequency specific information about a person's hearing ability." The examiner did not address the Veteran's report of continued symptoms since service. The Board therefore finds that the examiner did not provide an adequate rationale for her opinion. To have probative value, a medical examination report submitted to the Board must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In November 2015, the Veteran testified at a Board hearing before the undersigned. He endorsed onset of hearing loss since service and that it has continued thereafter. See November 2015 Board Hearing Transcript, 2-3. He described service as a member of a 155 millimeter artillery battery that spent "long hours firing that weapon." Id. at 3. He explained that he also spent a lot of time training with this weapon and firing for "8, 12, 16, 16, 17 hours a day," prior to being stationed in Vietnam during the Tet Offensive. Id. His representative also stated that "the constant and frequent exposure and firing of the cannons has caused [the Veteran's] hearing loss and tinnitus." Id. The Board has considered the Veteran's statements of record that service connection is warranted for his bilateral hearing loss. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In particular, the Veteran's testimony has described symptoms during and since service that are supported by a later diagnosis for bilateral hearing loss that was made by a medical professional. The Veteran is competent to report symptomatology relating to his decreased hearing because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. Furthermore, the Veteran has alleged a continuity of symptomatology. As provided in his November 2015 Board Hearing testimony, competent evidence concerning the etiology and continuity of symptoms for the Veteran's auditory disability has been provided by the Veteran during the current appeal. The Veteran submitted audiological records performed in connection with his prior employment. These records demonstrate that the baseline testing in May 1988 reflected severe hearing difficulty in the right ear in the high frequency ranges and a progression of hearing loss since that time. The Board has considered the foregoing competent opinion of the Veteran and finds that it supports this claim. Even though there is some negative evidence against the claim, the evidence is balanced both for and against the claim. As noted above, the VA examination did not fully account for the Veteran's report of decreased hearing or the fact that he presented with hearing loss at his baseline examination for employment in 1988. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination or medical opinion to aid in determining the etiology of the hearing loss. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Here, the Veteran has competently and credibly testified that he had decreased hearing during service that continued until the present day. His hearing loss eventually was diagnosed by a medical professional and the record reflects it meets the thresholds required by VA under 38 C.F.R. § 3.385. Accordingly, resolving doubt in the Veteran's favor, service connection is established for bilateral hearing loss. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Concerning the claim for tinnitus, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds no reason to doubt the Veteran's credibility. Given this conclusion, the Board will review his statements as to the etiology of his tinnitus. The Veteran's claim was denied based on the absence of treatment records for tinnitus during service. However, the Veteran presented additional arguments in his November 2015 Board Hearing. The Veteran stated he was exposed to acoustic trauma and that he has continuously experienced symptoms of tinnitus since service. The Board finds that ringing in the ears is capable of lay observation, and as such, the Veteran is competent to testify as to that symptom. See Charles, 16 Vet. App. at 370. As such, the Veteran has credibly testified he began experiencing ringing while in service and that it continued to the present day. This testimony has been reiterated in written statements. The Veteran has not attempted to bolster or exaggerate his symptoms of tinnitus. As such, the criteria for service connection for tinnitus have been met. In reaching this conclusion, the Board acknowledges that the November 2008 rating decision found that the Veteran's tinnitus was not related to military service, reasoning that there were no complaints of ringing ears in the service treatment records. However, that decision was not based on a complete consideration of the relevant evidence and updated legal policies that consider tinnitus to be a presumptive disorder, and it is therefore insufficient to rebut the Veteran's credible statements as to continuity. Based on the foregoing, and resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted and the claim is granted. Duties to Notify and Assist With respect to the Veteran's claims decided above, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326 (2015). Given the favorable decision by the Board, there is no further duty to notify or assist the Veteran or to explain how VA complied with the duties to notify and assist. ORDER New and material evidence has been received to reopen a service connection claim for a low back disability. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMAND Unfortunately, part of the Veteran's appeal must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims of entitlement to service connection for hypertension and a low back disability so that he is afforded every possible consideration. Without further clarification, the Board is without medical expertise to determine whether any of the currently diagnosed disabilities are related to service. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The May 2007 VA examiner stated that the Veteran has been treated for hypertension by VA since the 1970's and that these records should be requested. The Veteran told the VA examiner that he treated at the Martinez VA at the time he got out of service and was on-and-off antihypertensives. While there are some records from the 1970s, it is unclear if the complete records have been obtained. Rather, the request in July 1975 only requested records from May 1975 until July 1975. Accordingly, records from December 1969 until May 1975 should be requested. Furthermore, the examiner did not provide an adequate medical nexus opinion for this disease. She opined, "Hypertension is not caused by diabetes, but is likely service connected as well." However, the examiner failed to provide a rationale for that statement. On remand, further opinion as to the etiology of the hypertension should be obtained. The February 2012 VA examiner opined that the Veteran's low back disability was less likely than not incurred in or caused by the claimed in-service injury based. She opined that a review of the Veteran's file "indicates an acute lumbar strain...appeared to resolve without any continuing disability. There is no mention of a chronic disabling lumbar spine condition at exit from military service. Treatment notes on a low back condition are available starting in 2010." The Veteran has endorsed onset of symptoms since service, but the examiner stated that the Veteran did not claim a low back condition when he exited the military. The Board notes that this statement is incorrect as the Veteran did file a claim for a back strain in January 1970. The examiner also mentioned that the Veteran's lumbar spine was injured in the "early 1980's" as a result of a "workman's compensation injury." A rationale for the medical opinions above must be clearly and fully articulated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the opinions lack any discussion of the Veteran's contentions as to onset and continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). When VA undertakes to provide a VA examination or obtain a VA medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disabilities. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In light of the above, the Board finds that addendum VA examination opinions must be obtained. Accordingly, the case is REMANDED for the following action: 1. Request records from the Martinez VA Healthcare System and any other VA facilities at which the Veteran has received treatment for the disabilities on appeal from December 1969 until May 1975. 2. After any records requested above have been received, an addendum opinion should be obtained to clarify the etiology for the Veteran's current diagnosis for hypertension. If necessary, all indicated tests and studies are to be performed. Prior to providing the opinion, the claims folder should be made available for review of the case. A notation to the effect that this record review took place should be included in the opinion. The examiner should also address the following: a) whether any current diagnosis of hypertension is at least as likely as not (i.e., probability of 50 percent) related to service b) whether any current diagnosis of hypertension is at least as likely as not (i.e., probability of 50 percent) related to by his service-connected diabetes. c) whether any current diagnosis of hypertension is at least as likely as not (i.e., probability of 50 percent) was aggravated by his service-connected diabetes. The examiner should specifically discuss whether the Veteran's VA treatment records from 1975 that document blood pressures of 148/88 (October 1974 and April 1975) and 170/100 that further notes a diagnosis of hypertension in July 1975. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. An addendum opinion should be obtained to clarify the etiology for the Veteran's current low back disability. If necessary, all indicated tests and studies are to be performed. Prior to providing the opinion, the claims folder should be made available for review of the case. A notation to the effect that this record review took place should be included in the opinion. The examiner should address whether any current low back disability is at least as likely as not (i.e., probability of 50 percent) related to service. The examiner's opinion should take into account the Veteran's statements regarding continuity of symptoms since service, to include his January 1970 service connection claim for "back strain." Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 4. Following the completion of the foregoing, the AOJ should readjudicate the Veteran's claims. The AOJ should then provide the Veteran and his representative with a supplemental statement of the case, and allow an appropriate period of time for response. Thereafter, the claims folder should 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 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). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs