Citation Nr: 1806004 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-38 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for left ear hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for tinnitus. 3. Entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2010 and October 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned in June 2017. A transcript of the hearing is of record. The record reflects that the Veteran filed a timely VA Form 9, Substantive Appeal, on matters seeking service connection for sleep apnea, cysts on the right shoulder, a rash on the feet, and hypertension, increased ratings for posttraumatic stress disorder and a right ankle disability, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. However, the Veteran requested a hearing before the Board on these issues. As the requested hearing has not yet been conducted, those issues are not ready for adjudication by the Board, and they will be addressed in a later Board decision. The issue of service connection for left ear 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. A December 2002 rating decision reopened and denied the Veteran's claim of service connection for left ear hearing loss; the Veteran did not appeal this decision, or submit new and material evidence within a year of its issuance. 2. Evidence received since the December 2002 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for left ear hearing loss; and raises a reasonable possibility of substantiating such claim. 3. A December 2002 rating decision denied the Veteran's claim of service connection for tinnitus; the Veteran did not appeal this decision, or submit new and material evidence within a year of its issuance. 4. Evidence received since the December 2002 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus; and raises a reasonable possibility of substantiating such claim. 5. The evidence is at least in equipoise as to whether the Veteran's tinnitus was caused by in-service noise exposure. CONCLUSIONS OF LAW 1. The December 2002 rating decision that reopened and denied a claim for service connection for left ear hearing loss is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received, and the claim for service connection for left ear hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The December 2002 rating decision that denied a claim for service connection for tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received, and the claim for service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claims given the favorable nature of the Board's decision for the portion of the claims being decided herein. Legal Standards and Analysis Left Ear Hearing Loss Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. The Court interpreted the language of 38 C.F.R. § 3.156(a), and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran contends that he is entitled to service connection for left ear hearing loss. Originally, a February 1982 rating decision denied service connection for left ear hearing loss. The Veteran submitted new and material evidence within one year of notification of the denial, and a subsequent January 1984 rating decision continued the denial of the claim. The Veteran did not file a Notice of Disagreement (NOD) or submit new and material evidence within a year of the rating decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. A subsequent petition to reopen the claim was denied in June 1995. The Veteran initiated an appeal of this decision, but did not file a timely VA Form 9, Substantive Appeal, after a statement of the case was issued. Therefore, the June 1995 decision also became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran's claim was most recently denied in December 2002 based on a finding that there was no indication that the Veteran's condition was incurred in or aggravated by his in-service noise exposure. The Veteran did not file a NOD or submit new and material evidence within a year of the rating decision. Therefore, the December 2002 decision is final as to the denial of service connection for left ear hearing loss. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Thereafter, the Veteran filed a petition to reopen the claim in June 2009. A February 2010 rating decision reopened and denied the claim on a de novo basis. However, the Board must first consider whether new and material evidence has been received to reopen the claim, regardless of the RO's actions. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The evidence of record at the time of the December 2002 rating decision consisted of the Veteran's DD-214, service treatment records (STRs), VA treatment records from December 1979 to October 2002, private treatment records from Dr. H.F. from February 2001 to December 2001, a private audiology examination by Dr. J.G. from May 1999, and lay statements from the Veteran's friend, R.L., dated January 1995. The evidence associated with the claims file after the December 2002 rating decision includes Military Personnel Records, VA Form 21 4138, Statements in Support of Claim, from June 2009, December 2009, and January 2009, El Paso Health Care System records from December 1979 to November 2017, private treatment records from May 1999 and December 1999, a VA Examination dated September 2009 with an addendum opinion dated December 2009, lay statements submitted by the Veteran's friend, W.S, dated July 2016, and hearing testimony from June 2017. The September 2009 VA examination diagnosed the Veteran with left ear hearing loss for VA purposes. The September 2009 VA examination is new, in that it was not previously of record. The Veteran's military personnel records are also new, in that they were not previously of record, and reflect that he served as a military policeman in the Tet Counter Offensive campaign and the 6th Unnamed Campaign. Additionally, the Veteran testified at the June 2017 hearing regarding the noise exposure he incurred during service and continuity of symptoms of left ear hearing loss since service. Since the lack of evidence of a relationship to service was part of the basis for the denial of the claim in the prior decision, this new evidence clearly relates to an unestablished fact necessary to substantiate the claim and is material. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence has been received to reopen the claim for service connection for left ear hearing loss, and reopening the claim is warranted. 38 C.F.R. § 3.156(a). Tinnitus New and Material Evidence As stated above, generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. The Veteran contends that he is entitled to service connection for tinnitus. The Veteran's claim was denied in December 2002 based on a finding that there was no disability. The Veteran did not file a NOD or submit new and material evidence within a year of the rating decision. Thus, the December 2002 decision is final as to the denial of service connection for tinnitus. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Thereafter, the Veteran filed a claim to reopen the claim in July 2013. An October 2013 rating decision denied reopening the claim based on the theory that the evidence received was not material to the claim. A January 2016 statement of the case indicates that the RO reopened the claim for service connection for tinnitus and denied it on a de novo basis. However, the Board must first consider whether new and material evidence has been received to reopen the claim, regardless of the RO's actions. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The evidence of record at the time of the December 2002 rating decision consisted of the Veteran's DD-214, STRs, VA treatment records from December 1979 to October 2002, private treatment records from Dr. H.F. from February 2001 to December 2001, a private audiology examination by Dr. J.G. from May 1999, and lay statements from the Veteran's friend, R.L, dated January 1995. The evidence associated with the claims file since the December 2002 rating decision included Military Personnel Records, VA Form 21-4138, Statement in Support of Claim, from July 2013, El Paso Health Care System records from June 1997 to November 2017, lay statements from the Veteran's friend, W.S., dated July 2017, and hearing testimony from June 2017. The records from the El Paso Health Care System indicate that the Veteran has a diagnosis of tinnitus and receives treatment for his tinnitus. The diagnosis is new, in that it was not previously of record and material in that it clearly relates to an unestablished fact necessary to substantiate the Veteran's claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. 110. New and material evidence has been received to reopen the claim for service connection for tinnitus, and reopening the claim is warranted. 38 C.F.R. § 3.156(a). The Board will proceed by adjudicating this claim on the merits. As the AOJ adjudicated this claim on the merits in the January 2016 statement of the case and March 2017 and December 2017 supplemental statements of the case, to include consideration of all new, pertinent evidence, the Veteran is not prejudiced by the Board's action, particularly as the decision is favorable to him. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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, 1167 (Fed. Cir. 2004). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection without having to satisfy the nexus requirement, unless the disease is clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 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. For certain chronic diseases listed in 38 C.F.R. § 3.309(a), including tinnitus, a continuity of symptomatology is required when the condition noted during service is not 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any material issue to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims he has tinnitus that began in service. Because tinnitus is "subjective," its existence is generally determined by whether or not the Veteran claims to experience it. 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). On an October 2013 VA treatment record, it is noted that the Veteran reported having constant ringing in both ears that is bothersome all day, particularly when he does not wear his hearing aids. The Veteran also reported having trouble falling asleep at night due to the ringing in his ears. The Veteran was prescribed a sound pillow to help him manage the tinnitus and to sleep. The Veteran has competently stated that he has tinnitus, and the Board finds his statements to be credible. Therefore, there is evidence of a current disability. With respect to the second element of service connection, an in-service event or injury, the Veteran's records reflect that he was exposed to small-arms fire, machine gun fire, grenade launchers, and small cannon fire while in Vietnam. The Veteran's service personnel records show that he served in the military police in Vietnam from November 1967 to October 1968, participated in the Tet Counter Offensive campaign and the 6th Unnamed Campaign. The Veteran's friends, R.L. and W.S. also both presented lay evidence that the Veteran complained of hearing problems to them while they were in service. A January 1995 statement from R.L., in particular, stated that he remembered the Veteran complaining of having ringing in his ears due to the artillery fire and the lack of ear protection. The Veteran also testified at his June 2017 Board hearing that while in service they were under constant ambushes and experienced small-arms fire. Therefore, the noise exposure described by the Veteran is consistent with the circumstances and hardships of his combat service. 38 U.S.C. § 1154(b). The Board finds that the evidence establishes an in-service injury, i.e., acoustic trauma. Finally, the Veteran reported during October 2013 VA treatment that he has been experiencing tinnitus since about 1999. However, a February 1982 VA treatment record indicates that the Veteran reported experiencing tinnitus in the left ear at that time. Additionally, at the June 2017 Board hearing, the Veteran testified that he has experienced ringing in his ears since service, and until he was able to receive treatment at the VA, he took sleeping pills to help him sleep through the ringing. In addition, on an August 2010 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran asserted that he was seen in a field clinic while in Vietnam because he was unable to sleep due to unbearable aching/pain in the ears. The Veteran further alleged that the pain has continued since service. The Board finds the Veteran's statements that he has been experiencing tinnitus continuously since he was in service to be competent and credible and places great weight of probative value on them. The Board acknowledges that the September 2009 VA audiology examiner opined in the December 2009 addendum opinion that the Veteran's tinnitus was less likely than not caused by military noise exposure because there is no hearing loss or shift with which to correlate hearing loss or tinnitus. The Board places little weight of probative value on this opinion as it did not consider the Veteran's lay statements or the evidence of record regarding the onset and continuity of tinnitus during and since service. Accordingly, based on the analysis above, when resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the claim for service connection for left ear hearing loss is reopened; to this extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for tinnitus is reopened. Service connection for tinnitus is granted. REMAND Having reopened the Veteran's claim for service connection for left ear hearing loss, the Board finds that further development is necessary prior to appellate review. The September 2009 VA examiner found that the Veteran did not have hearing loss on exit from service and therefore, his left ear hearing loss was less likely than not a result of his military noise exposure. The Board finds the examiner's opinion to be inadequate. The fact that hearing loss was not demonstrated during active duty is not fatal to the Veteran's claim. Moreover, the examiner's negative nexus opinion lacks any meaningful rationale, as he only indicates that the Veteran's separation examination did not reveal hearing loss. Neither a normal separation examination alone nor the absence of a separation audiometric examination is an adequate basis for a negative nexus opinion in such a case. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). It should be noted that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley, 5 Vet. App. at 159. As such, the Board finds that another VA examination must be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Of note, the Veteran is competent to report on the extent of his exposure to acoustic trauma in service. The Board also finds that the Veteran's testimony and the evidence of record supports that he was exposed to small arms fire, machine gun fire, grenade launchers, and small cannon fire while in Vietnam. The Veteran's military personnel records show that he served in the military police, participated in the Tet Counter Offensive campaign and the 6th Unnamed Campaign. Therefore, the noise exposure described by the Veteran is consistent with the circumstances and hardships of his combat service and exposure to acoustic trauma in service is conceded. 38 U.S.C. § 1154(b). In addition, in the present appeal on this issue, the Veteran submitted a July 2016 buddy letter from W.S., corroborating that the Veteran complained of hearing problems during service and that W.S. himself sought treatment for hearing problems at the time and that the medics kept no records of the visit. In addition, as noted above, on an August 2010 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran asserted that he was seen in a field clinic while in Vietnam because he was unable to sleep due to unbearable aching/pain in the ears. The Veteran further alleged that the pain has continued since service. As the most recent VA treatment records that have been associated with the claims file are from October 2017, updated treatment records shall be obtained upon remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from October 2017 to the present. 2. Schedule the Veteran for a VA examination to evaluate his claim for service connection for left ear hearing loss. The claims file must be made available to the clinician for review in conjunction with the examination. All indicated tests and studies, to include audiological and controlled speech discrimination (Maryland CNC) testing, should be accomplished and the findings then reported in detail. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's left ear hearing loss disability is related to the Veteran's service, to include the conceded noise exposure and complaints of pain in service, and continuity of symptoms of hearing loss since service. A rationale must be provided for all opinions and conclusions rendered. Any opinions should address the particulars of this Veteran's medical history, his lay statements, Buddy Letters from R.L. (January 1995) and W.S. (July 2016), and the relevant medical principles as applicable to this claim. If the clinician cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Finally, after undertaking any other development deemed appropriate, readjudicate the issue remaining on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs