Citation Nr: 18152575 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 15-42 867 DATE: November 23, 2018 ORDER New and material evidence has been received; the claim of entitlement to service connection for tinnitus has been reopened. Entitlement to service connection for tinnitus is granted. New and material evidence has been received; the claim of entitlement to service connection for a bilateral hearing loss disability has been reopened. REMANDED The claim of entitlement to service connection for a bilateral hearing loss disability has been remanded. FINDINGS OF FACT 1. In an unappealed January 1994 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a hearing loss disability and tinnitus. 2. Assuming its credibility, additional evidence received since the January 1994 rating decision, namely evidence of current disabilities and Veteran’s report on examination that “military noise exposure from firing range and weapons, difficulty understanding speech and constant bilateral tinnitus, [had their] onset in Vietnam,” relates to an unestablished fact necessary to substantiate the claims and as such raises a reasonable possibility of substantiating the claims. 3. The Veteran had excessive noise exposure during service. 4. The Veteran is competent to report having experienced tinnitus since service. CONCLUSION OF LAW 1. The January 1994 rating decision denying service connection for a bilateral hearing loss disability and tinnitus is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). 2. Since the January 1994 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability and tinnitus; therefore, the claim is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 3. Tinnitus was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from April 1969 to April 1993. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Houston, Texas. The Veteran withdrew his claim for entitlement to service connection for low back condition in February 2016. In addition, the Board acknowledges that the issues of entitlement to service connection for incontinence and prostatitis have been the subject of Notices of Disagreement. However, Statements of the Case have not yet been issued. The VA's Veterans Appeals Control and Locator System (VACOLS) indicates that the AOJ has acknowledged the NOD and is continuing to work on that matter. See August 2018 notice letters to Veteran (acknowledging the receipt of his August 2018 NODs). As the AOJ has acknowledged receipt of the NOD and VACOLS indicates that further action is pending at the AOJ, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable in the present case. The issue of entitlement to service connection for a bilateral hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a bilateral hearing loss disability and tinnitus. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that new and material evidence has not been received, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The Board has characterized the claims accordingly. Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156 (2017). The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has 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. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). The Veteran’s original claim of entitlement for service connection for hearing loss and tinnitus was denied in January 1994 because it was not shown under the criteria set forth in 38 C.F.R. 3.385. The Veteran’s original claim of entitlement for service connection for tinnitus was denied in the same rating decision, because it was not shown in service. The Veteran did not file an appeal of the decision and he did not assert that there was clear and unmistakable error. Therefore, that decision became final. 38 U.S.C. § 4005 (c) (West 1991); 38 C.F.R. §§ 3.104, 19.118, 19.153(2017). In March 2009, the Veteran filed a petition to reopen his claim to entitlement for bilateral hearing loss and tinnitus. In an April 2009 rating decision, the AOJ considered the Veteran’s petition and denied the Veteran’s petition to reopen this claim. The AOJ denied the Veteran's petition on the basis that the evidence submitted is not new and material in that it does not relate to an unestablished fact necessary to substantiate the claim and/or does not raise a reasonable possibility of substantiating the claim. Since the April 2009 rating decision, the Veteran has submitted VA medical treatment records from Wilford Hall Medical Center from March 1995 to December 2008 and outpatient treatment records from VAMC San Antonio from May 2011 to December 2014. The Veteran has also submitted a statement in support of his claim in March 2010 indicating "I was denied hearing loss and tinnitus in 1993 because I never received appointment letter for QTC. I was around a lot of aircraft when I was in Vietnam.” Further, since the April 2009 rating decision, the record contains a December 2017 VA examination and VA treatment records from November 2015 to June 2018. In July 2018, the AOJ issued a supplemental statement of the claim (SSOC). The AOJ reopened the claims of entitlement to service connection for tinnitus and bilateral hearing loss on the grounds that new and material evidence had been received. The claim remained denied. As noted earlier the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). Specifically, the VA examination of December 2017 addresses whether the Veteran has a current hearing loss disability and tinnitus. During the examination, the Veteran reported “military noise exposure from firing range and weapons, difficulty understanding speech and constant bilateral tinnitus, onset in Vietnam.” The credibility of the Veteran’s statement is presumed for the limited purpose of reopening the claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In addition, January 2018 VA treatment records indicate that the Veteran is a previous user of VA issued hearing aids, fit in 2010. Furthermore, treatment records of June 2018 indicate that the Veteran was seen for a hearing aid fitting. These 2018 treatment records also address whether the Veteran has current hearing loss, including the results of an audiogram. The Board finds that since the January 1994 rating decision new and material evidence is of record and warrants the reopening of the claim. This evidence is considered "new," as it was not of record at the time of the last final denial; it is also "material" because it relates to a previously unestablished fact, namely, the existence of current disabilities, and a possible medical nexus between the Veteran's alleged hearing loss, tinnitus and his military service. 38 C.F.R. § 3.156. As the threshold to reopen claims is low, the Board finds that new and material evidence has been submitted. Accordingly, the claims for service connection for a bilateral hearing loss disability and tinnitus are reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Service Connection for Tinnitus Generally, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson 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, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of the in-service injury if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The Veteran contends he is entitled to service connection for tinnitus. For the reasons stated below, the Board finds that service connection for tinnitus is warranted. The evidence of record documents that the Veteran has current tinnitus inasmuch as the Veteran has credibly stated that he has constant ringing in his ears. See November 9, 2015, Form 9; see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran was competent to as to the ringing in his ears because ringing in the ears is capable of lay observation). Because tinnitus is observable by a layperson, the Board finds the Veteran's observation both competent and credible evidence of a current disability. Service treatment records show Veteran complaints of tinnitus in 1993. The Veteran complained that he had periodic ringing in the ears since the 1980's. The records show that an audiologist reported Veteran complaints of “periodic moderate tinnitus,” “occurring daily, states unknown origin or duration.” “The tinnitus is loud high pitched.” In the Veterans Form 9, he states "I was exposed to gun fire in Vietnam. I have constant ringing in both ears.” In his March 2010 Statement of Support of Claim, the Veteran states that he was around a lot aircraft when he was in Vietnam. The Veteran also reported during a January 2018 audiology exam of an “incident of blast exposure while in fox hole during tour in Vietnam.” The Veteran reported that the blast occurred approximately 40 yards away and suspects in closer proximity to left ear but is unsure.” The examiner indicated that “the Veteran reports marked 4-day threshold shift following incident.” In addition, the Veterans representative, in their Appellant brief, asserts that the Veteran was exposed to loud noises “from the firing range and weapons.” The Veteran's DD-214 indicates that the Veteran served as an Information Management Technician for 16 years, and as a stenographer for 8 years. The DD-214 also indicates that the Veteran served in Vietnam and in the Persian Gulf. His decorations include a Republic of Vietnam Campaign Medal, Republic of Vietnam Gallantry Cross with palm and National Defense Service Medal with one bronze service star. The Veteran states that he “worked a lot near the flight line.” See 1993 Treatment Record. The reported noise exposure is consistent with the circumstances, conditions, or hardship of his combat service. The Board finds that the Veteran was exposed to harmful noise during service. See 38 U.S.C. § 1154 (b). Therefore, taking into consideration the Veteran's contentions, along with his DD-214, the Board credits the Veteran as a reliable historian of his experiences and noise exposure in service. See Jandreau, 492 F.3d at 1377. For the reasons set forth above, the Board concedes that the Veteran was exposed to excessive noise in-service. Although a VA April 2016 treatment record indicated that the Veteran had no hearing loss or tinnitus, the Veteran has stated that he has had ringing in his ears since the 1980’s. In addition, the Boards notes that the April 2016 treatment note, written for purposes of a gastroenterology consult evaluation, does not show that the Veteran’s report of in-service noise exposure was taken into consideration. Because laypeople are competent to report this symptom, the Board assigns less probative weight to this treatment note, because it is inconsistent with the Veteran's competent and credible report. Thus, the Board concedes the Veteran's military noise exposure, and the Board finds the Veteran to be an accurate historian when he asserts that he has experienced ringing in his ears since service. See Charles, 16 Vet. App. at 374. Additionally, the evidence since service does not indicate post-service acoustic trauma. Accordingly, any doubt regarding the onset of the Veteran's current tinnitus must be resolved in the Veteran's favor. Furthermore, the Board again notes that absence of in-service evidence of a disability during service is not always fatal to a service connection claim. See Davidson, 591 F.3d 1313; Ledford, 3 Vet. App at 89. The Board recognizes that, in this case, the Veteran himself is of the opinion that such a link exists between his current tinnitus and active service. Therefore, although a lay person, the Veteran is capable of opining on such medical question because tinnitus is observable by a layperson. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board is also particularly impressed with a notation in a treatment record dated January 1993, in which the Veteran reported symptoms of ringing in the ears since the 1980’s, which further solidifies a basis for finding a continuity of symptomatology. Following a review of the medical and lay evidence of record, the Board finds the competent and credible statements of the Veteran as to ongoing tinnitus since service to be of at least equal weight as the treatment record of April 2016. Therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current tinnitus began in service. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that evidence of noise exposure, current tinnitus, and continuity of symptoms since his honorable period of service, support a grant of entitlement to service connection for tinnitus. See Walker, 708 F.3d 133; see also 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS FOR REMAND The claim of entitlement to service connection for a bilateral hearing loss disability has been Remanded. The Veteran asserts that he has a bilateral hearing loss disability as a result of his in-service acoustic trauma. The Veteran was afforded a VA audiological examination in December 2017; however, the Board remands this matter for an additional VA audiological examination. First, the Board remands this matter for a new VA audiological examination for a clarification of the diagnosis. The VA arranged a December 2017 to determine the nature and etiology of the Veterans hearing loss disability. However, the examiner was unable to provide a medical opinion regarding the etiology of the appellant's hearing loss “without resorting to speculation.” Medical evidence that is speculative, general or inconclusive in nature is also of no probative value. Obert v. Brown, 5 Vet. App. 30 (1993). In addition, the examiner observed that they could not “provide an opinion due to poor interest consistency and responses consistent with a non-organic hearing loss component.” As a result, the Board finds this exam to be inadequate, and the Veteran should be given a new examination on remand. The matter is REMANDED for the following action: 1. Obtain any outstanding and ongoing VA treatment and/or private treatment records. 2. Thereafter, the claims record and a copy of this remand must be made available to, and reviewed by, the VA examiner (or a suitable substitute) to determine the nature and etiology of the Veteran's bilateral hearing loss. The examiner must indicate on the examination report that the case was reviewed again. If it is determined that another examination is needed to provide the required opinion, the Veteran must be afforded the appropriate VA examination. If a bilateral hearing loss disability is found, the examiner should provide an opinion addressing the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's bilateral hearing loss disability was incurred in or aggravated by service to include exposure to acoustic trauma in service? In rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran's noise exposure consistent with his duties in service as an information management technician and stenographer, serving in Vietnam and the Persian Gulf. The VA examiner is also directed to the Veteran's testimony that he was not exposed to acoustic trauma post-service. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in furtherance of his perceived hearing loss. See Jandreau, 492 F.3d at 1377. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any opinion provided must be sufficiently supported by medical knowledge and rationale, and therefore, not conclusionary in nature. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD CLittle, Associate Counsel