Citation Nr: 1804432 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 09-39 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss, and if so, whether service connection is warranted. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: John Dorrity, Agent ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from February 1970 to September 1971, which included service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2007 and September 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In January 2007, the RO denied the Veteran's claim to reopen the previously denied claim of entitlement to service connection for hypertension. That claim was timely appealed to the Board, which reopened and remanded the issue in May 2013. In September 2015, the RO denied the Veteran's claim to reopen the previously denied claims of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran filed a Notice of Disagreement in October 2015. A Statement of the Case was issued in October 2016. The Veteran filed a Substantive Appeal in November 2016. In the November 2016 Substantive Appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge. In March 2017, the Veteran submitted a statement to withdraw his request for a hearing, and asked that the case return to the Board for adjudication. The issue of entitlement to service connection for hypertension 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 August 2004 rating decision denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal the RO determination or present new evidence within one year of the rating decision. As such, this decision is final. 2. Evidence has been received since the August 2004 rating decision that relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for tinnitus. 3. Evidence has been received since the August 2004 rating decision that relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 4. Resolving doubt in favor of the Veteran, the Veteran's tinnitus was incurred in or a result of active duty service. 5. The Veteran's bilateral hearing loss was not incurred in active duty service, nor did it manifest within one year of service. CONCLUSIONS OF LAW 1. The August 2004 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. New and material evidence has been received since the August 2004 denial of service connection for tinnitus. 38 U.S.C.A. §§ 1131, 5103, 5108 (West 2014); 38 C.F.R. §§ 3.156, 3.303 (2017). 3. New and material evidence has been received since the August 2004 denial of service connection for bilateral hearing loss. 38 U.S.C.A. §§ 1131, 5103, 5108 (West 2014); 38 C.F.R. §§ 3.156, 3.303 (2017). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA Notice VA has completed the necessary steps in order to meet its duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014). "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). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied the Veteran's claim of entitlement to service connection for bilateral hearing loss and tinnitus in August 2004 due to a lack of present diagnoses for either of these conditions. Evidence received since August 2004 reflects a present diagnosis of both bilateral hearing loss and tinnitus. The bar to reopening a claim for new and material evidence is low, and the Veteran's reported present diagnoses meet that threshold. Therefore, such evidence is new and material, and the claims of entitlement to service connection for tinnitus and bilateral hearing loss are reopened. III. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2014). A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303 (2017); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hearing loss or tinnitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). Hearing loss and tinnitus are "chronic diseases" listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to this service connection claim. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Tinnitus The Veteran contends that he is entitled to service connection for tinnitus. In the Veteran's September 2016 VA examination, he reported experiencing tinnitus during his military service, but did not recall a specific incident of onset. His tinnitus was noted as recurrent, and he reported that the tinnitus interfered with the onset of sleep. The VA examiner opined that the Veteran's tinnitus was less likely than not related to active duty service as there were no complaints of tinnitus in service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. The Board concludes that the Veteran's tinnitus was incurred in active duty service. It has been conceded that he was exposed to noise in service. While the Veteran reported to the examiner that the tinnitus started in service, the examiner found the statement less probative as there were no official complaints of tinnitus in service. However, the Veteran is competent to testify as to onset of a condition such a tinnitus. As such, the Board may place more probative weight on the Veteran's statement regarding onset, which occurred during active duty. As the evidence of record stands in relative equipoise, the benefit of the doubt is resolved in favor of the Veteran. Service connection for tinnitus is warranted. Bilateral Hearing Loss The Veteran contends that he is entitled to service connection for bilateral hearing loss. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's enlistment audiological evaluation in February 1970, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 X 5 LEFT 0 0 0 0 0 Speech recognition was not assessed in this examination. On the Veteran's separation audiological evaluation in September 1971, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 Speech recognition was not assessed in this examination. The Veteran's post-service treatment records indicate the presence of hearing loss as early as September 2008, but do not provide audiological evaluations of this condition. On a September 2016 VA examination authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 40 45 LEFT 15 15 25 50 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner noted that there was no permanent positive threshold shift greater than the reference threshold at any frequency between 500 and 6000 for either ear. The examiner concluded that the Veteran's present bilateral hearing loss was less likely than not the result of active duty service. The Veteran's enlistment and separation examinations noted normal hearing bilaterally with no shift in hearing seen upon discharge. There was no evidence of hearing loss during active duty service. The next indication of hearing loss was more than three decades following discharge. In the Institute of Medicine (IOM), National Academy of Sciences 2006 article listed Noise and Military Service-Implications for Hearing Loss and Tinnitus, the IOM concluded that based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss. IOM did not rule out that delayed onset might exist but because the requisite longitudinal animal and human studies have not been done and, based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. As such it was less likely than not that the Veteran's active duty service resulted in bilateral hearing loss so long after service. In sum, the evidence of record reflects bilateral hearing within normal limits at the beginning and end of the Veteran's active duty service. Post-service medical records do not reflect a diagnosis of bilateral hearing loss until over three decades following service. These treatment notes do not provide audiological evaluations, nor do they opine as to the etiology of the Veteran's hearing loss. Thus, the Board finds the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a bilateral hearing loss disability after service separation. Furthermore, the Veteran's September 2016 VA examination report denies a nexus between his present bilateral hearing loss and service due to the normal entrance and separation examination reports, and the length of time between active duty service and onset of bilateral hearing loss. The examiner reviewed the record, examined the Veteran and provided a clear rationale for the opinions offered. Accordingly, the Board finds the opinion to be highly probative. While the Veteran is competent to provide testimony to establish the occurrence of medical symptoms, there is no evidence of record to suggest that he is medically qualified to prove a matter requiring medical expertise. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). The etiology of bilateral hearing loss is a complex medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Medical evidence of record has not established a nexus between his purported hearing loss and qualifying service. Thus, although the Board has carefully considered the lay contentions of record, the Board ultimately affords the objective evidence of record more significant probative weight, which weighs against finding a connection between the Veteran's bilateral hearing loss and his active duty service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim of service connection for bilateral hearing loss must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER 1. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. 2. New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. 3. Entitlement to service connection for tinnitus is granted. 4. Entitlement to service connection for bilateral hearing loss is denied. REMAND Unfortunately, remand is again necessary in order to properly adjudicate the remaining issue on appeal. The Veteran has undergone a number of VA examinations to assess the etiology of his hypertension. While the Veteran contends that his hypertension is secondary to his diabetes, the Board has an obligation to consider all reasonably raised theories of entitlement to service connection, even if not specifically raised by the claimant. See Douglas v. Derwinski, 2 Vet. App. 435 (1992) (evidence reasonably raising a service-connection theory not specifically raised by the claimant must be considered in adjudicating a claim). In the context of a service connection claim, theories of entitlement such as direct service connection, secondary service connection and presumptive service connection are deemed as part of the appeal regardless of when the issue has been raised in the record. See Bingham, supra. Unfortunately, the Veteran's examination reports reflect opinions with respect to secondary service connection, and do not adequately address the theory of direct service connection. Furthermore, although hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e)(2017), the National Academy of Sciences Institute of Medicine (NAS) has concluded that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). Accordingly, a supplemental opinion is necessary in order to properly adjudicate this remaining issue on appeal. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding private treatment records regarding his hypertension. If private providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the private treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned development is complete, obtain a supplemental medical opinion from the previous examiner, if possible, regarding the etiology of the Veteran's hypertension. The examiner must review the entire claims file, including a copy of this remand. The examiner should consider the aforementioned NAS conclusion regarding an association between herbicide agents and hypertension. The examiner should opine as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension began during active service, is related to an incident of service, or began within one year after discharge from active service, to include his service in Vietnam? The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If the above requested opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner should also identify what additional information or evidence (if any) may allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. 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 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). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs