Citation Nr: 1754741	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO. 14-38 592A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES


1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for 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

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



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

G.C., Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1960 to October 1963. 

This case comes before the Board of Veteran's Appeals (Board) from a September 2010 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Portland, Oregon.

The Veteran testified at a Travel Board hearing before the undersigned in October 2017. A copy of the hearing transcript is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

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 Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. An April 2008 rating decision denied service connection for tinnitus and bilateral hearing loss. The Veteran did not file a timely appeal, and therefore, the April 2008 rating decision became final.

2. Evidence received since the April 2008 rating decision is material and raises a reasonable possibility of substantiating the claims of service connection for tinnitus and bilateral hearing loss.

3. Resolving all reasonable doubt in the Veteran's favor, tinnitus is manifested as a result of his active service.


CONCLUSIONS OF LAW

1. The April 2008 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

2. New and material evidence has been received to reopen the previously-denied claims of entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 20.1103 (2017).

3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1).

The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Appeal to Reopen Claims of Entitlement to Service Connection

Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105 (2012). However, pursuant to 38 U.S.C. § 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 means existing evidence not previously submitted to agency decision makers. 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. See 38 C.F.R. § 3.156 (a).

An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that VA's statutory duty to assist the appellant in the development of the claim has been fulfilled. See 38 U.S.C. § 5108 (2012); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).

In addition, for the limited purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is generally to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."'

Regarding the Veteran's petition to reopen his previously denied claims for entitlement to service connection for bilateral hearing loss and tinnitus, he was denied service connection by an April 2008 rating decision in which the RO determined there was an absence of evidence of hearing loss or tinnitus in service and of evidence linking hearing loss or tinnitus to service. The Veteran was notified of the denial and his appellate rights. The Veteran did not submit a timely Notice of Disagreement, and the April 2008 rating decision became final. 

The Veteran submitted a petition to reopen the previously denied claims in May 2010, which the RO denied in its September 2010 decision. However, the Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claim. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the RO may have made with regard to a new and material claim is irrelevant. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Thus, the Board must determine whether new and material evidence was presented to reopen the claim of entitlement to service connection for bilateral hearing loss and tinnitus in the first instance.

Since the April 2008 rating decision, evidence submitted includes, in relevant part, the following: a May 2010 private audiogram from Dr. R.M. diagnosing severe profound sensorineural hearing loss with speech discrimination at 64 percent bilaterally; lay statements, including a February 2014 statement from the Veteran's ex-wife indicating the Veteran had hearing issues upon his discharge from service and a February 2015 statement from his younger sister indicating the same; a May 2010 request to reopen his claims, in which the Veteran indicates exposure to loud gun and jet noise in service, explosives and gun fire noise in National Guard service, and claims his tinnitus and hearing loss have worsened; an April 2014 statement from the Veteran stating in part that his constant exposure to noise from jets in service caused his hearing loss; a July 1965 report of medical history indicating the Veteran had only partial hearing capacity; VA medical records indicating bilateral decreased hearing in November 2009; and the transcript from the Veteran's October 2017 hearing, when he testified he was "crash rescue" on the flight line in service, that he noticed both tinnitus and hearing loss since his discharge from service, that the VA audiologist based her examination on the wrong audiogram, and that he was found to have partial hearing loss in 1965.  

Assuming the credibility of the evidence above for the sole purpose of determining whether new and material evidence has been received, the Board finds that the above evidence is new, as it came into existence after the issuance of the April 2008 decision and could not have been considered by prior decision makers. Moreover, it is material as it addresses the possibility of substantiating an in service injury or event, due to providing competent evidence of the Veteran's claimed in-service event, as well as a nexus between the event and his current disabilities, elements of service connection that were previously unsubstantiated. New and material evidence having been received, reopening of the previously denied claims of service connection for bilateral hearing loss and tinnitus is warranted.

Entitlement to Service Connection - Tinnitus

Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during 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. 38 C.F.R. § 3.303 (a); 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 organic diseases of the nervous system such as 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. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309 (a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).

The United States Court of Appeals for the 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. § 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).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 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).

A current diagnosis of tinnitus has been established. See April 2008 VA examination. The Veteran testified that he has had ringing in his ears on and off since service, which becomes worse at night sometimes. See October 2017 Hearing Transcript. 

The Veteran's September 1963 discharge examination indicates that he had hearing within normal limits bilaterally, and in fact, the Veteran reported in the associated report of medical history that he never had ear trouble or any illness or injury which was not already noted. There is also a June 1982 enlistment report of record, which assessed the Veteran for National Guard duty. An audiogram was also conducted which showed hearing within normal limits, and the Veteran reported being in good health. 

In April 2008, the Veteran was afforded a VA examination to assess the nature and etiology of his hearing complaints. The Veteran reported noise exposure while in service and having difficulty hearing. He also reported not knowing when his tinnitus started, stating it was possibly in service or shortly thereafter. The examiner opined that the Veteran's tinnitus is less likely than not due to active duty noise exposure as he had considerable occupational civilian noise exposure and the 1963 discharge audiogram showed excellent hearing sensitivity bilaterally. 

However, the Veteran submitted a May 2010 audiogram from Dr. R.M., who stated that the Veteran's speech discrimination testing at a comfortable level was poor in both ears at 64 percent, and recommended binaural amplification with frequency compression. 

Furthermore, the Veteran submitted a statement in March 2014. He stated that as a fire protection specialist, he was on the flight line, and his duties put him in close proximity to jet planes landing, taking off and sometimes crashing. He stated that these noises often left his head pounding and his ears ringing. The Veteran cites an Air Force occupational safety and health standard document, which notes possible adverse effects of noise exposure caused by proximity to jets. 

The Veteran's statements are corroborated both by his ex-wife's and his sister's statements, submitted in the form of affidavits in February 2014. The Veteran's sister reported an incident when she tried communicating with the Veteran, and he did not acknowledge her because he had trouble hearing. Similarly, the Veteran's ex-wife indicated she had to repeat herself often for the Veteran to hear and understand her, and his hearing deteriorated as time passed. Indeed, she states that in 1976, the year of their divorce, the Veteran's hearing had gotten worse. 

The Board first and foremost notes that VA has conceded the Veteran's exposure to noise while in service. The Board also finds that the Veteran's statements and the lay statements of record are credible. The Veteran has consistently reported intermittent ringing in his ears since service, and his tinnitus has been corroborated both by medical diagnosis and the lay evidence of record. 

The Board is aware that the Veteran's separation examination had a normal audiogram, that a VA examination resulted in the opinion that it is less likely than not that his tinnitus is related to service, and that a later 1982 audiogram found the Veteran's hearing to be within normal limits. However, the Board assigns less weight to this negative evidence. Specifically, the aforementioned evaluations were not for tinnitus, but for hearing loss. Also, the VA examination did not account for the Veteran's 1965 finding of partial hearing, nor did it contain an explanation as to why the Veteran's statements were being discounted. 

VA has conceded that the Veteran was exposed to loud noise in service, the lay reports of record have been consistent in reporting tinnitus symptomatology, and observations regarding the onset of tinnitus are capable of lay observation. The Board has found the lay statements of record to be credible. 

Therefore, resolving doubt in the Veteran's favor, as the evidence is at least in relative equipoise, service connection for tinnitus is granted.


ORDER

Service connection for tinnitus is granted.


REMAND

Although the Board sincerely regrets the additional delay, a remand is required in this case to afford the Veteran every possible consideration and to ensure that there is a complete record upon which to decide the Veteran's claim of entitlement to service connection for bilateral hearing loss. 

The Board notes that the audiometric findings of record taken during the April 2008 VA examination do not account for all the lay statements of record, including the Veteran's ex-wife and younger sister, and further, do not consider the newly submitted evidence, which has been found material to the claim of entitlement to service connection for bilateral hearing loss. As such, the Board finds it important that the Veteran's audiological evaluation consider this evidence, especially the July 1965 report of medical history which shows he had only partial hearing capacity, and the Veteran's hearing testimony, as it goes directly to the question of nexus. 

Also, the April 2008 VA examination is at this time over nine years old. The Veteran stated in a May 2010 statement that his hearing has become progressively worse over time. Therefore, under the circumstances, the Board is of the opinion that a contemporaneous VA audiometric examination would be appropriate prior to a final adjudication of the Veteran's claim for service connection. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records.

2. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of his current bilateral hearing loss disability. The claims file must be made available to the examiner, and review of the file must be noted in the requested report. The examiner must record the full history of the Veteran's bilateral hearing loss, including the Veteran's competent account of his symptoms. The examiner must consider that VA has conceded in-service noise exposure. Following review of the claims file and examination of the Veteran, the examiner must respond to the following:

(a) Is it at least as likely as not that any current hearing loss disability had its onset in service; or is related to any in-service disease, event, or injury, including noise exposure while working near jet aircraft and near gunfire and explosives; or that it manifested within a year of separation from service?

The examiner must conduct functional impact testing, and must, in addition to all the evidence of record, specifically consider the evidence added since the April 2008 rating decision, including but not limited to the Veteran's hearing testimony, the lay statements of record and the July 1965 report of medical history finding partial hearing loss. 

All findings and conclusions must be supported with a complete rationale and set forth in a legible report, which must reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge.

3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted.

The appellant 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. §§ 5109B, 7112 (West 2014).



______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs