Citation Nr: 1803063 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 15-09 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability. 4. Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1955 to August 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of entitlement to service connection for bilateral hearing loss and a low back disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Tinnitus is etiologically related to acoustic trauma sustained in active service. 2. In an unappealed May 2007 rating decision, the RO denied service connection for an acquired psychiatric disability based there was no evidence of a current low back disability. 3. The evidence added to the record since the May 2007 rating decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for a low back disability. CONCLUSIONS OF LAW 1. Tinnitus was incurred in active service. 38 U.S.C.A. § 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The May 2007 rating decision that continued a prior denial of service connection for a back disability is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2016). 3. With respect to the Veteran's claim for service connection for a back disability, new and material evidence has been received since the May 2007 denial. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Since the Board is granting the Veteran's appeals for tinnitus and to reopen a claim for a back disability there is no need to discuss whether the Veteran has received sufficient notice or assistance with regard to these claims, given that any error would be harmless. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Merits - Tinnitus The Veteran has asserted that he has tinnitus as a result of acoustic trauma sustained while in active service. Specifically, the Veteran has reported acoustic trauma in the form of repeated exposure to propeller engines as a crew chief before the wide use of hearing protection. A review of the Veteran's service separation form shows that his military occupational specialty (MOS) while in active service was aircraft mechanic. Therefore, the Board concedes the Veteran's exposure to acoustic trauma while in active service. A review of the service medical records is silent for treatment for or a diagnosis of tinnitus while the Veteran was in active service. However, the Veteran has reported that he first experienced tinnitus while in active service and has continued to experience tinnitus since his separation from active service. The Veteran is competent to report when he first experienced tinnitus and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible. The Board notes that 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). The Veteran is competent to identify tinnitus and his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently reported that he first experienced tinnitus while in active service and that he has continued to experience it since that time and those statements have been found credible by the Board. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (whether new and material evidence has been submitted must be asked and answered by the Board de novo whenever a claim to reopen is filed). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Merits - New and Material Evidence: Back Disability The Veteran was denied service connection for a back disability in a May 2007 rating decision because there was no evidence that the Veteran had a current back disability. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of 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's duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a); Shade v. Shinseki, supra. The August 2014 VA examiner diagnosed the Veteran with a degenerative arthritis of the spine a current disability which is new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for a low back disability. Specifically, due to the prior lack of evidence showing of a current disability, this new evidence is material because it relates to an element that was previously not shown, a current disability. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for a back disability is reopened. 38 U.S.C.A. § 5108. ORDER Entitlement to service connection for tinnitus is granted. The claim for service connection for a back disability is reopened; the claim is granted to this extent only. REMAND VA Examination Inadequate - Back Disability The August 2014 examination is, in part, inadequate. The examiner's opinion does not address the Veteran's statements regarding the consistent symptoms of back pain since his separation. Instead, the VA examiner's opinon focuses on the lack of treatment from separation until October 2004. This type of rationale however has been addressed by the United States Court of Appeals for Veterans Claims (Court), which has held, in short, that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." in Savage v. Gober, 10 Vet. App. 488, 496 (1997). The Veteran has explained in his March 2015 substantive appeal that the medical provider who treated him following his separation from service as since passed away and his medical records surrounding this treatment have been lost. The Board thus finds that a new examination be conducted as the previous examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). VA Examination Inadequate - Bilateral Hearing Loss The August 2014 examination includes no puretone results or speech discrimination score. Instead, the examiner has wrote that he could not test either puretone results or speech discrimination because "no results adequate for rating purposes could be obtained from [the] veteran even with repeated instruction." The Board finds that this rationale is conclusory and does not explain why no adequate rating could be obtained. As such, the Board finds that a new examination is warranted. See Barr v. Nicholson, supra. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Schedule the Veteran for an appropriate VA examination(s) with an appropriate VA examiner(s), OTHER THEN THE ONES WHO CONDUCTED THE AUGUST 2014 EXAMIANTIONS, to identify any back disability and/or hearing loss, and their etiology(s), and determine the etiologies. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. (a). After considering the pertinent information in the record in its entirety, the VA examiner should identify any bilateral hearing loss. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any hearing loss identified, was incurred or aggravated by his active duty. (i). The examiner(s) should review the service treatment records (STRs), any post-service records contained in the claims file, and take a detailed history from the Veteran regarding the onset of his hearing loss and any continuity of symptoms since that time. (ii). The VA examiner should take into account the change in audiometric standard. Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). (ii). The examiner should address the Veteran's conceded exposure to hazardous noise as his military occupation as a crew chief on large propeller planes without hearing protection. For any negative opinion, the examiner must identify the medical reasons as to why the evidence does not provide sufficient proof of a relationship between the Veteran's current identified disabilities and his period of military service. (b). After considering the pertinent information in the record in its entirety, the VA examiner should identify all back disabilities present. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any back disability identified, was incurred or aggravated by his active duty. The examiner(s) should review the service treatment records (STRs), any post-service records contained in the claims file, and take a detailed history from the Veteran regarding the onset of his back disability and any continuity of symptoms since that time. The Board emphasizes that symptoms, not treatment, are what is relevant, thus, the examiner must consider the Veteran's lay statements. In providing an opinion on the Veteran's claim for service connection, the examiner should comment in particular on: (i). The Veteran's statement regarding the loss of medical evidence prior to October 2004 from his primary care provider due to the provider death. (ii). The Veteran's March 1959 Narrative Summary which details that the Veteran had two injuries to his back while in service that he was placed in the hospital following the second injury for 6 weeks and had not yet recovered and diagnosed with "sprain, lumbo-sacral joint (L-5, S1), LD: yes [...] and myositis, lumbar, paraspinal muscles. For any negative opinion, the examiner must identify the medical reasons as to why the evidence does not provide sufficient proof of a relationship between the Veteran's current identified disabilities and his period of military service. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs