Citation Nr: 18141666 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 18-19 893 DATE: October 11, 2018 ORDER The claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD) is reopened; to this limited extent, the appeal of this issue is granted. Service connection for hearing loss is granted. Service connection for tinnitus is granted. REMANDED The issue of entitlement to service connection for a respiratory disorder, to include COPD and asthma, is remanded. FINDINGS OF FACT 1. In a decision of June 2013, the RO denied the claim of service connection for COPD on the basis that is was not incurred in or caused by service; the Veteran was notified of the decision and of his appellate rights but he did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period. 2. The additional evidence since the RO’s decision in June 2013 is not redundant or cumulative evidence previously considered and it relates to an unestablished fact necessary to substantiate the claim for service connection for COPD. 3. The Veteran’s current hearing loss had onset in service. 4. The Veteran’s current tinnitus had onset in service. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen a claim of entitlement to service connection COPD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1954 to June 1956. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2017 and January 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Idaho. By the decision below, the previously denied claim for service connection for a COPD, is reopened and has been recharacterized as service connection of for a respiratory disorder, to include COPD and asthma, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. COPD The Veteran previously submitted a claim of entitlement to service connection for COPD, which was denied in June 2013 rating decision on the basis that it was not incurred in or caused by service. The June 2013 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran’s claim to reopen, VA received lay statements corroborating the Veteran’s account of the in-service event that he contends caused the current disorder. See, e.g., Statements (December 29, 2017). Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Hearing loss and Tinnitus The Veteran seeks service connection for hearing loss and tinnitus, which he contends began in service and has been recurrent since that time. All three elements of service connection are established by the competent and credible lay and medical evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has a diagnosis of hearing loss, reports ongoing tinnitus and suffered acoustic trauma when a fire extinguisher exploded in his hands in service. See, e.g., Substantive Appeal (April 2018). While records of the incident appear to have been destroyed in a fire, competent and credible statements from the Veteran and others establish that it is at least as likely as not that the reported incident occurred. See Statements (December 29, 2017). Thus, the first two criteria have been met. Further, the competent and credible evidence of record shows that his current bilateral hearing loss and tinnitus began during service and have been recurrent since that time. The Veteran reported that he first noticed hearing loss and tinnitus during service and that they have gotten worse over the years. See, e.g., Claim (December 4, 2017). The Veteran is competent to report the onset and continuation of his hearing loss and tinnitus symptoms and the Board finds his reports credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the January 2017 VA examiner opined that the Veteran’s current bilateral hearing loss and tinnitus are not related to service; however, the opinion carries no weight as it is predicated on the absence of objective evidence of in-service hearing loss or noise exposure without regard to the Veteran’s report of symptoms since service or fact that records that could have provided objective evidence of hearing loss or noise exposure may have been destroyed in a fire. The Board further notes that the January 2017 VA examination report states that the Veteran did not report recurrent tinnitus. Critically, however, shortly after the examination, the Veteran stated that he did not report tinnitus as the examiner never asked about it. The Board finds his account credible, particularly as he has reported recurrent tinnitus before and after the examination and the examination report does not indicate that the Veteran denied tinnitus, only that he did not report it. Overall, after resolving any doubt in the Veteran’s favor, the evidence shows that the Veteran’s hearing loss and tinnitus had their onset in service. Accordingly, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). REASONS FOR REMAND The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a respiratory disorder because no VA examiner has provided an opinion on the nature and etiology of the claimed disorder. A respiratory disorder was not noted upon entrance into service in September 1954. As such, Veteran was presumed sound at service entry However, by October 1954, the Veteran was treated for two severe asthma attacks in one week. Treatment records show that he reported a lifelong history of asthma and that during service his symptoms and the frequency of his attacks increased, some requiring prolonged hospitalization. See, e.g., Service treatment records (September 14, 1955). In February 1956, his asthma has increased so much so that he was recommeneded for discharge. Upon separation from service in June 1956, medical examiner noted that the Veteran’s lifelong asthma and shortness of breath was exacerbated during service and that the exacerbation was the reason for separation. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current respiratory disorder, to include COPD and asthma. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s documented in-service respiratory problems. If a respiratory disability, to specifically include asthma and COPD is present on examination, the examiner is to address the likelihood that the Veteran’s respiratory disorder existed service. If the examiner finds the respiratory disability did preexist service, the examiner must opine as to the likelihood it was aggravated by service. If the examiner finds that a respiratory disability did not pre-exist service, the examiner must opine as to whether it is at least as likely as not related to service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel