Citation Nr: 1805345 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 17-32 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N.M. Floore, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1952 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri in which the RO reopened and denied the Veteran's previously denied claim for service connection for tinnitus. The RO has reopened the claim, but continued the denial issued in a previous final decision. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. 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). FINDINGS OF FACT 1. An August 2005 rating decision denied service connection for tinnitus. The Veteran initiated but did not perfect an appeal of that determination, and it is final. 2. Evidence received since the August 2005 rating decision with respect to the claim of entitlement to service connection for tinnitus is new and material. 3. The preponderance of the evidence shows that the Veteran's tinnitus was not present in service or until many years thereafter and is not related to service or to any incident of service origin, to include bilateral hearing loss and acoustic trauma. CONCLUSIONS OF LAW 1. The August 2005 rating decision denying service connection for tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2017). 2. Evidence received since the August 2005 rating decision to reopen the claim of entitlement to service connection for tinnitus is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case. VA is not required to provide examinations for a petition to reopen a previously denied claim unless it is first reopened. 38 C.F.R. § 3.159(c). However, examinations were provided to the Veteran in March 2012 and March 2016 in connection with the Veteran's service-connected hearing loss and relevant information as to the Veteran's tinnitus service connection tinnitus claim was obtained at those times. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiners also provided a rationale for the opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2017). II. New and Material Evidence The Veteran seeks to reopen his claim of entitlement to service connection for tinnitus. New and material evidence is required in that regard. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156 (a) (2017). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156 (a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for tinnitus was denied in a prior August 2005 final rating decision. At that time, the RO denied the claim on the basis that there was no evidence that the condition existed and there was no current evidence that the condition was incurred in or caused by the Veteran's military service. The RO also received notification from the National Personnel Records Center (NPRC) that the Veteran's service treatment records (STRs) may have been destroyed in a fire at NPRC in 1973. NPRC could not confirm the existence of such records; only the fact that if they had been stored at the Records Center, they would have been stored in an area damaged by the fire. These records have not since been located and are not associated with the claims file. The Veteran was provided notice of this determination and he filed a timely notice of disagreement in September 2005. A statement of the case was issued in July 2006; however, the Veteran did not subsequently perfect his appeal by filing a timely substantive appeal. Thus, the August 2005 rating decision is final. The Veteran requested the claim be reopened in May 2016. In a subsequent June 2016 rating decision the RO reopened the Veteran's claim for service connection for tinnitus and found that service connection on a direct and secondary basis was not warranted as the Veteran's tinnitus was not incurred in or caused by military service and it was less likely than not a symptom associated with his bilateral hearing loss. The RO found that although current treatment records showed tinnitus since 2015, there was no indication that the condition began in service, was caused by service, or was made permanently worse by service. The Veteran filed a timely appeal to this decision. Evidence submitted in connection with the Veteran's claim on appeal, includes VA examination reports, and lay statements from the Veteran. The Veteran provided lay statements indicating his exposure to acoustic trauma and research articles indicating a possible link between hearing loss and tinnitus. The Board notes that subsequent to the August 2005 prior final rating decision, the RO granted service connection for hearing loss in a July 2006 rating decision. As noted, VA examinations were conducted in March 2012 and March 2016, and relevant medical opinions were obtained. Based on the foregoing evidence and in light of the prior evidence of record including the Veteran's lay statements and the VA examinations, the Board finds that the Veteran's statements and VA examinations are sufficient to reopen the Veteran's claim as such evidence contributes to a more complete picture of the circumstances surrounding the origin of the Veteran's tinnitus. However, for reasons outlined below, the Board finds that such evidence is not enough to convince the Board to grant the claim on the merits. Having reopened the tinnitus claim on the basis of this new and material evidence, the Board must next determine whether the Veteran would be unduly prejudiced by the Board immediately proceeding with the readjudication of this claim on its underlying merits. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (noting that where the Board reopens a claim, but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from the readjudication of the claim); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993) (noting that the Board must consider whether a veteran is prejudiced by a lack of RO consideration of the merits of a claim). The Board finds that adjudication of the reopened tinnitus claim on a de novo basis is appropriate at this juncture. A review of the May 2017 statement of the case reflects that the RO considered the service connection claim on both a direct and secondary basis. Specifically, although addressing new and material evidence, the RO found that the Veteran's current tinnitus was not incurred in or aggravated by service, and explained why. The Veteran was also provided with the laws and regulations applicable to service connection in the May 2017 document. The VCAA letter also provided information on reopening a prior final claim and on the underlying merits of the claim. The Veteran has evidenced his actual knowledge of the requirements for establishing his underlying entitlement to service connection by associating his tinnitus with his military service or a service-connected disability. Thus, the Board's proceeding with the service connection issue, without a remand to the RO, will not prejudice the Veteran. III. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as tinnitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112 , 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. 38 C.F.R. § 3.303 (b). Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus (organic disease of the nervous system) is a qualifying chronic disease. See Walker, 708 F.3d 1331; Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A. Tinnitus The Veteran contends that he currently has tinnitus related to military noise exposure and/or his service-connected bilateral hearing loss. The evidence of record shows that the Veteran served in Korea and that his STRs were not available for review. Notification from NPRC indicated that the Veteran's STRs may have been destroyed in a fire at the Records Center in 1973. NPRC could not confirm the existence of such records; only the fact that if they had been stored at the Records Center, they would have been stored in an area damaged by the fire. These records have not since been located and are not associated with the claims file. A May 2006 VA examination that was of record prior to issuance of the July 2006 statement of the case showed the Veteran denied experiencing tinnitus. It was noted at the time that the Veteran had a history of unprotected exposure to hazardous military noise as well as civilian noise. The examiner provided a negative opinion as to whether the Veteran had tinnitus that was related to service as the Veteran denied having it. A March 2012 VA hearing loss examination showed that the Veteran reported that he had bilateral intermittent tinnitus which occurred once a day; he reported the onset as the 1980's. The examiner concluded that the Veteran's tinnitus was less likely than not a symptom of the Veteran's service-connected hearing loss noting that the Veteran did not link the onset of his tinnitus with the onset of the hearing loss and he had denied the presence of tinnitus at the 2006 VA examination. The examiner stated further that due to the variability of statements between interviews, there was some doubt as to the credibility of the Veteran's report as to onset. Therefore, the examiner stated that the original statement made by the Veteran must be conceded as the most accurate and most reliable, and therefore, true. He again concluded that the it was not at least as likely as not that the Veteran's tinnitus is related to the Veteran's military service. A March 2016 VA hearing loss examination showed that the Veteran had bilateral hearing loss and tinnitus. The Veteran reported the onset of tinnitus as one year earlier. The examiner concluded that the Veteran's tinnitus was less likely than not a symptom associated with the Veteran's hearing loss. He stated further that although hearing loss and tinnitus are commonly present together, they are not necessarily mutually occurring and have varying causes to include certain medications, stress, anxiety, nicotine, sodium, excessive caffeine, etcetera. Hearing loss does not cause tinnitus or vice versa. The examiner continued, stating that the Veteran's tinnitus was less likely than not caused by or a result of the Veteran's military noise exposure, noting that the Veteran's military service ended over 60 years earlier and the Veteran reported the onset of tinnitus as one year prior to the examination. The examiner noted that the Veteran had had numerous other possible causes of tinnitus over the last 60 years. As noted, the Veteran provided lay statements describing his exposure to acoustic trauma during his military service while assigned with the 578th Combat Engineers attached to the 40th Infantry Division in Korea. He also stated that his tinnitus is related to his service-connected bilateral hearing loss. The Veteran provided several website links identified as information published by the Mayo Clinic, the American Speech-Language-Hearing Association, the National Institute on Deafness and other Communication Disorders at the National Institute of Health, and the Vestibular Disorders Association; which he stated demonstrated that hearing loss can cause tinnitus and in the alternative hearing loss and tinnitus have a common etiology. The Veteran is currently diagnosed with bilateral hearing loss and tinnitus. The Veteran competently and credibly described his in-service experience of noise exposure. However, the medical evidence of record shows that it is less likely than not that the Veteran's tinnitus was caused by or related to military service. The Board has considered the Veteran's opinion regarding direct service connection. However, as a lay person, the Veteran does not have the training or expertise in medical matters and this issue involves a medical determination that is complex. Therefore, the VA medical opinions are more probative regarding the causation question in this case and have been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiners regarding the relationship between the claimed disability and service, a medical professional who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Regarding a nexus between current tinnitus and acoustic trauma during service, the presence of tinnitus during service with symptoms thereafter, and the presence of tinnitus within one year of service discharge, there is no documentation of such, objective or otherwise, and the Board finds the Veteran's varying lay statements regarding the date of onset of tinnitus to be competent but not credible. The Veteran has made several statements regarding the date of onset for his tinnitus. At the 2006 VA examination, he denied experiencing tinnitus, in 2012, he reported the onset in the 1980's, and in 2016, he reported the onset as one year earlier. While, the Veteran is competent to report the observable symptoms he experiences, such as ringing in his ears, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. As the Veteran has given several different dates of onset of tinnitus, the Board finds the Veteran's reported history regarding the onset of his tinnitus is not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). Unreliable statements as to the dates of onset for tinnitus cannot establish the nexus element of 38 C.F.R. § 3.303(a) for direct service connection, or continuity of symptomatology for service connection under 38 C.F.R. § 3.309, or diagnosis within one year. Service connection on a direct basis is denied because there is no competent evidence linking the disability to service. In reference to secondary service connection, in his March 2012 VA examination, the Veteran reported that he experienced bilateral intermittent tinnitus. He reported the onset in the 1980s. The examiner provided that the Veteran denied tinnitus at his 2006 Compensation and Pension (C&P) examination, but currently reported bilateral intermittent tinnitus beginning in the 1980s. The examiner further provided that due to the variability of statements between the interviews, there was some doubt left as to the credibility of the Veteran's testimony. Therefore, he felt that the original statements made by the Veteran must be conceded as most accurate and most reliable and therefore used as true. The examiner opined that the Veteran's tinnitus was less likely than not (less than 50% probability) a symptom associated with the Veteran's hearing loss and that the Veteran's tinnitus was less likely than not (less than 50% probability) caused by or a result of military noise exposure. The March 2016 examiner opined that the Veteran's tinnitus was less likely than not (less than 50% probability) a symptom associated with the Veteran's hearing loss. The examiner provided that although hearing loss and tinnitus are commonly present together, they are not necessarily mutually occurring and have varying causes to include certain medications, stress, anxiety, nicotine, sodium, excessive caffeine, etc. Hearing loss does not cause tinnitus or vice versa. The examiner further provided that the Veteran ended his military duty over 60 years prior and reported the onset of tinnitus within the last year. The examiner further provided that the Veteran had numerous other possible origins of the tinnitus over the last 60 years. The Board finds that Veteran's opinions regarding secondary service connection are not both competent and credible. In his May 2006 VA examination, he reported that he did not experience tinnitus. Thereafter, in his March 2012 VA examination, he reported he experienced bilateral intermittent tinnitus and provided an onset of the 1980s, still many years after service. The Veteran further reported in his March 2016 VA examination that his tinnitus began one year prior. While the Board notes that the Veteran has a current diagnosis of tinnitus, the contemporaneous evidence does not indicate that his tinnitus is related to his service-connected bilateral hearing loss. Further, the only competent and credible evidence of record that is based on a thorough review of the record, examination of the Veteran, and with consideration of the Veteran's contentions in this case does not support the Veteran's claim for secondary service connection. Accordingly, direct and secondary service connection for tinnitus is not warranted. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert. ORDER The claim for service connection for tinnitus is reopened and the claim is granted to this extent only; however, service connection for tinnitus is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs