Citation Nr: 1804904 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-20 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for tinnitus. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Stephanie P. Grogan, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for bilateral hearing loss was denied by a December 2010 rating decision. The Veteran initially appealed the December 2010 rating decision, but the Veteran failed to timely perfect the appeal to the Board and did not submit new and material evidence in the year following notice of the rating decision. 2. Evidence received since the December 2010 rating decision is either not new, not material, or does not raise a reasonable likelihood of substantiating the Veteran's claim for bilateral hearing loss. 3. Service connection for tinnitus was denied in December 2010 rating decision. The Veteran initially appealed the December 2010 rating decision, but the Veteran failed to timely perfect the appeal to the Board and did not submit new and material evidence in the year following notice of the rating decision. 4. Evidence received since the December 2010 rating decision is new, material, and raises a reasonable likelihood of substantiating the Veteran's claim for tinnitus. 5. The Veteran has a current diagnosis of tinnitus and has manifested continuous symptomology since separation from service. CONCLUSIONS OF LAW 1. The December 2010 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 2. The criteria for reopening the Veteran's previously denied claim of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The December 2010 rating decision that denied service connection for tinnitus is final. 38 U.S.C. § 7105 (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 4. The criteria for reopening the Veteran's previously denied claim of service connection for tinnitus have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the context of the issue of whether new and material evidence has been submitted to reopen previously denied claims, there are additional notice requirements. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of her claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a personal hearing before the Board, and a transcript of the hearing is of record. While the Veteran is remanding the claim to seek personnel records, these records are being obtained because they may shed light on the etiology of his psychiatric disability. There is no suggestion that they would impact his hearing loss claim, and as such, the Veteran is not prejudiced by the Board proceeding with the adjudication of that claim at this time. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disability and contentions, and grounded the opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor her representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. New and Material Evidence The Veteran contends that he has submitted new and material evidence to reopen several claims for service connection. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance, because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. Bilateral Hearing Loss At issue is whether the Veteran has submitted new and material evidence to reopen his previously denied claim for service connection for bilateral hearing loss. The RO originally denied the Veteran service connection for bilateral hearing loss in December 2010. The Veteran filed a timely notice of disagreement, but the decision became final after the Veteran failed to timely perfect his appeal after the issuance of an SOC in response to the Veteran's initial appeal. The Veteran subsequently filed a claim to reopen the issue, and, in July 2013, the RO denied the Veteran's claim to reopen. The Veteran appealed. In December 2010 the RO originally denied the Veteran service connection, because bilateral hearing loss did not occur in and was not caused by service. Prior to the December 2010 decision, the record contained service treatment records which indicated that the Veteran's hearing was normal upon entry into service, and that upon separation of service the Veteran's hearing acuity had decreased mainly in the right ear but also in the left; but that hearing in both ears was still normal for VA purposes. The record contained the Veteran's civilian treatment records which were largely irrelevant to his claim. Finally, the record contained a VA examination which confirmed the presence of bilateral hearing loss for VA compensation purposes, but which found that the bilateral hearing loss was less likely than not related to the Veteran's military service. The record did not contain a diagnosis of bilateral hearing loss within one year of separation of service or continuity of symptomology since separation of service. The evidence submitted into the record since the December 2010 rating decision included additional statements and oral testimony that the Veteran's bilateral hearing loss was related to in-service military noise exposure. See Transcript. Additionally, treatment records associated with the claims file indicated that there has been no change in the Veteran's hearing loss since the December 2010 rating decision. The evidence submitted into the record since the December 2010 rating decision is not sufficient to reopen the Veteran's claim for service connection for bilateral hearing loss. With the exception of reports of military noise exposure, the additional evidence is not new, because it is simply cumulative of facts that were in the record before the December 2010 rating decision; including the fact that the record did not contain a positive medical opinion or a diagnosis of bilateral hearing loss within one year of separation of service. Additionally, the new treatment records indicate that there has been no change in the Veteran's bilateral hearing loss. The Veteran's reports of military noise exposure is new and material, but it does not raise a reasonable likelihood of substantiating the Veteran's claim, because ultimately the Veteran's hearing was normal for VA compensation purposes upon separation of service; and a diagnosis of bilateral hearing loss for VA compensation purposes was not established for decades after separation of service. As previously noted, the Board recognizes the threshold for reopening a claim is low, but it is a threshold nonetheless and as described the evidence that has been added since December 2010 clearly does not reach that threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Tinnitus The Veteran contends that he has submitted new and material evidence to reopen a claim for service connection for tinnitus. The weight of the evidence indicates that the Veteran has submitted new and material evidence to reopen his claim for service connection for tinnitus, and, furthermore, service connection for tinnitus is granted. The RO originally denied the Veteran service connection for tinnitus in December 2010. The Veteran initially filed a timely appeal, but the decision became final after the Veteran failed to timely perfect his appeal after the RO issued a SOC in response to the Veteran's initial appeal. The Veteran subsequently filed a claim to reopen the issue, and, in July 2013, the RO denied the Veteran's claim to reopen. The Veteran appealed. In December 2010 the RO originally denied the Veteran service connection, because tinnitus did not occur in and was not caused by service. Prior to the December 2010 decision, the record contained service treatment records which were silent for reports of or treatment for hearing loss. The record contained the Veteran's civilian treatment records which were largely irrelevant to the Veteran's claim. Finally, the record contained a VA examination which indicated that the Veteran had a diagnosis of tinnitus which was at least as likely as not related to a period of service. Upon reviewing the examination, the RO asked the examiner for clarification, because there was no documented acoustic trauma in-service. Upon considering this fact, the examiner opined that the Veteran's tinnitus was less likely than not related to a period of service. Since the December 2010 decision, the Veteran has provided statements and oral testimony of in-service noise exposure, and claims that tinnitus had continued to manifest since separation of service. See Transcript. As previously noted, the Veteran's reports of military noise exposure are new and material evidence. Unlike in the case of the Veteran's claim for bilateral hearing loss, reports of in-service noise exposure as well as his reports that tinnitus has continued since separation of service is sufficient to reopen the claim in this case, because tinnitus is a type of disorder associated with symptoms capable of lay observation; see Charles v. Prinicipi, 16 Vet. App. 370 (2002); and the primary role of the Board in adjudicating tinnitus claims is to assess the credibility of the Veteran's statements. Buchanan v. Nicholson 451 F.3d. 1331 (Fed. Cir. 2006). As such, a competent report of lay symptoms gives rise to a reasonable likelihood of substantiating his claim. Furthermore prior to reopening a claim of service connection, the credibility of additional evidence, including the Veteran's competent lay reports of medical symptoms, is generally presumed. See Justus. Therefor the Veteran's claims for service connection for tinnitus is deemed reopened. In this case, the Board finds no reason to doubt the Veteran's credibility. The Veteran has been diagnosed with tinnitus, and he has consistently reported that his tinnitus began in-service and continues to this day. The Veteran has not attempted to bolster or exaggerate his symptoms, and based on his reports of ringing, the Veteran was diagnosed with tinnitus. As such, the criteria for service connection for tinnitus have been met. In reaching this conclusion, the Board acknowledges that a VA examiner found that it was not likely that the Veteran's tinnitus was related to his military service, because tinnitus is not documented in the service treatment records. However, because the Board finds the Veteran's statements to be credible as to the onset and continuity of ear ringing, the statements sufficiently refute the basis of the examiner's conclusion. Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted and the Veteran's claim is granted. ORDER New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for bilateral hearing loss is denied. New and material evidence having been received; the Veteran's claim for service connection for tinnitus is reopened. Service connection for tinnitus is granted. REMAND The Veteran contends that his claim for service connection for an acquired psychiatric disorder should be reopened. During a personal hearing before the Board, the Veteran identified psychiatric treatment records including records from the Tulsa Outpatient Clinic and the Tulsa Behavioral Medicine Center, but unfortunately these records have not been associated with the claims file. This is sufficient to trigger VA's duty to assist and this matter must be remanded to obtain these records. Additionally, the Veteran's service personnel records should be associated with the claims file as well. Accordingly, the case is REMANDED for the following action: 1. Associate any outstanding VA treatment records with the claims file including from the Tulsa Outpatient Clinic and the Tulsa Behavior Medicine Center. 2. Associate any of the Veteran's outstanding service personnel records with the claims file. 3. Then, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. The Veteran 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 (2012). ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs