Citation Nr: 18140320 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-07 791 DATE: October 2, 2018 ORDER The claim of entitlement to service connection for bilateral hearing loss is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A June 2008 rating decision denied entitlement to service connection for bilateral hearing loss. The Veteran did not appeal, and did not submit new and material evidence within one year. 2. The evidence associated with the file after the June 2008 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. Tinnitus began during service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Army National Guard from July 1975 to November 1975 on Active Duty for training (ACDUTRA). Subsequently, the Veteran served honorably in the Army from May 1977 to July 1978. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Wichita, Kansas. In his February 2016 substantive appeal the Veteran declined Board hearing before a Veterans Law Judge (VLJ). The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Claim to reopen In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2018). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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, VA should not limit its consideration to 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran 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 - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a June 2008 rating decision, the RO denied service connection because the Veteran failed to appear for a VA examination. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the June 2008 rating decision includes VA treatment records, service treatment records, and lay statements. The VA treatment records show hearing loss and the use of hearing aids. The evidence of record did not establish a link between the current diagnosis and military service. Evidence submitted after the June 2008 rating decision included an April 2014 lay statement and a 2015 VA examination report. In the statement, the Veteran reported in-service noise exposure. Additionally, the Veteran alleged his hearing loss and tinnitus are related to his service. The 2015 VA examination report provided a negative nexus opinion. The Board finds that new and material evidence has been presented. The evidence, including the April 2014 lay statement and the 2015 VA examination, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of nexus. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is reopened. Service Connection Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2018). In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the Veteran with his claim decided herein are moot. Entitlement to service connection for tinnitus 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, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases, including tinnitus may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. See Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). Due to the inherently subjective nature of tinnitus, it is capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). A Veteran is also competent to report exposure to noise, when symptoms of tinnitus first manifested, and that the symptoms have continued since service. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran alleged the tinnitus began in service and has continued since that time. Specifically, in his Notice of Disagreement (NOD), the Veteran stated the ringing began in service and continues. First, the Board finds that there is a current disability. The Veteran has reported current ringing and buzzing in his ears. The Veteran is competent to report ringing and buzzing in his ears. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). The Board finds the Veteran’s statements credible and probative as his testimony has been consistent. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Furthermore, the October 2015 VA examination provided the Veteran reported recurrent tinnitus. The Board finds the first element of service connection is met. Second, the Board finds that the Veteran’s tinnitus had onset in service. In his September 2014 NOD and a December 2017 statement the Veteran stated the ringing began in service and has continued since that time. In an April 2014 statement, the Veteran stated he was exposed to artillery fire. The Veteran’s DD214 shows his military occupational specialty (MOS) as infantry and a commendation for marksman M16. The Board thus finds these statements credible as they are supported by the record. See Caluza, 7 Vet. App. at 511. Thus, the second element of service connection is met. Third, the Board finds that the most probative evidence of record demonstrates that tinnitus is related to service. The Veteran has consistently asserted that tinnitus has existed since service. As noted above, the Board finds these statements competent and credible. See Washington, 19 Vet. App. at 368; Caluza, 7 Vet. App. at 511. In an October 2015 VA examination report, the examiner provided a negative nexus opinion, noting the Veteran did not time lock tinnitus onset to military service and that he reported that onset was one year prior. In a September 2014 NOD, however, the Veteran stated that he did not know that the examiner meant the ringing in his ears when he was asked when the tinnitus began. This VA opinion thus has no probative value because it does not consider the relevant lay evidence of record regarding onset and continuity of symptoms, which the Board has found both competent and credible. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (noting that where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The Board finds that the most probative evidence demonstrates that tinnitus began in service and has existed since that time. Accordingly, service connection is granted. REASONS FOR REMAND Entitlement to service connection for hearing loss is remanded. Remand is required for an adequate hearing loss examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received a VA audiological examination in October 2015. The examiner found the hearing loss was less likely than not caused by military service because exit results were consistent with entrance data showing normal hearing. The May 1977 and June 1978 audio examination showed 25 decibels at 4000 Hz in the left ear. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, the examiner did not discuss the threshold shift from the April 1975 audio examination to the May 1977 audio examinations. Accordingly, a new examination is required.   The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. 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. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his bilateral hearing. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss had onset in, or is otherwise related to, active military service. The examiner must specifically address the following: 1) the Veteran’s statements regarding difficulty hearing because of noise exposure during service; 2) the threshold shift between the April 1975 enlistment audio examination and May 1977 audio examination; and 3) the higher than 20 decibels at 4000Hz in May 1977 audio examination and June 1978 exit examination. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel