Citation Nr: 18154251 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-45 657 DATE: November 29, 2018 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for tinnitus is granted. New and material evidence having been received, the petition to reopen the claim for service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is remanded. FINDINGS OF FACT 1. The evidence received since the final July 2009 rating decision is not duplicative or cumulative of evidence previously of record and it raises a reasonable possibility of substantiating the Veteran’s claim of service connection for tinnitus and bilateral hearing loss. 2. The Veteran has experienced tinnitus related to his in-service exposure to hazardous noise since his separation from service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for tinnitus and bilateral hearing loss have been met. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to January 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that during the pendency of his PTSD claim, the Veteran submitted a claim of entitlement to service connection for major depression in November 2014. A VA correspondence, dated January 2015, advised the Veteran that the major depression issue would be adjudicated with the PTSD issue as all mental disorders were adjudicated together. As such, the claim is recharacterized as a claim for an acquired psychiatric disorder to incorporate additional diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that what constitutes a claim is not limited by a Veteran’s assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Whether new and material evidence having been received to reopen a claim of service connection for tinnitus and bilateral hearing loss. Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 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. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final decision of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. 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. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In the instant case, a July 2009 rating decision denied service connection for tinnitus and bilateral hearing loss. The rating decision noted a lack of treatment during service or an in-service injury related to acoustic trauma. It was also noted that there was no evidence submitted showing the existence of a chronic disability and current treatment records showed no symptomatology or treatment for tinnitus or hearing loss. The Veteran did not appeal the decision and new and material evidence was not received with a year. Thus, this rating decision became final. 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran filed a petition to reopen the claims for tinnitus and hearing loss in July 2012. After review of the pertinent probative evidence of record, the Board finds that new and material evidence has been submitted. In November 2012, the Veteran submitted a letter providing details of his service in Vietnam. The letter asserted that he was assigned to a field artillery unit close to the Vietnam border that continually fired artillery rounds across the border. His responsibilities at the time were to provide artillery rounds to the gunners, which involved almost constant 24-hour operations. His personnel records show he was reclassified as an ammo handler and served in that capacity while deployed to Vietnam in 1970. Further, in a statement received in September 2016, he asserts that he has experienced ringing in his ears and bad hearing since he returned from Vietnam. The in-service acoustic noise exposure to artillery rounds on a constant basis is new evidence that could potentially substantiate the tinnitus and hearing loss issues. Thus, after review of the evidence above, the Board finds that new and material evidence has been received to reopen the claim of service connection for tinnitus and hearing loss. The Veteran’s lay statement regarding exposure to acoustic trauma during his Vietnam service is new and material evidence towards substantiating his service connection claims. SERVICE CONNECTION Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013) (stating that the theory of continuity of symptomatology can be applied only in cases involving those connections explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Tinnitus is considered chronic as an “organic disease of the nervous system” under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding the 38 C.F.R. “§ 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease of the nervous system’”). Where the evidence shows “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. With chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Entitlement to service connection for tinnitus. The Veteran contends that his current tinnitus disability is related to his active military service. A VA examiner in September 2013 diagnosed the Veteran with tinnitus as he reported recurrent tinnitus, thus the first element of a service connection claim has been met. The Board finds that the Veteran had exposure to hazardous levels of noise during his service in Vietnam based on his duties as an ammo handler. His DD Form 214 reflects service in Vietnam and his personnel records show he was assigned as an ammo handler in an artillery unit. As such, the Board finds high levels of noise exposure consistent with the duties, places, and circumstances of his service. 38 U.S.C. § 1154(a). Therefore, the second element of a service connection claim has been met. Regarding a link to service, the Board finds that the Veteran’s tinnitus is related to his active military service based on a continuity of symptomatology theory of entitlement. A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). As noted above, tinnitus is considered an organic disease of the nervous system, and as such is an enumerated chronic disease. Furthermore, tinnitus is a disability that is diagnosed based on self-report (lay observation by the person with such disability); hence, the Veteran is competent to establish by his own accounts that he has tinnitus, and that he has had it continuously since service. Therefore, although the record contains an opinion that relates the Veteran’s tinnitus to his hearing loss (as a symptom associated with such), the Veteran, as a layperson, is competent to report in-service acoustic trauma, in-service symptoms of tinnitus, and post-service, continuous symptoms of tinnitus. See Charles v. Principi, 16 Vet. App 370, 374-75 (2002). The Board finds that the evidence regarding the etiology of this tinnitus is in equipoise. As such, the Board resolves doubt in the Veteran’s favor on the material element of nexus. In sum, the Veteran’s tinnitus was caused by acoustic trauma during his active military service and his symptoms have been continuous since service. As such, service connection is warranted for the claim.   REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA examination for hearing loss and tinnitus in September 2013. The examiner provided an opinion that the Veteran’s bilateral sensorineural hearing loss was not related to his active service. The RO requested an addendum opinion because the examiner had not reviewed the claims file in order to obtain the Veteran’s medical history. A second VA audiological examination was conducted in January 2014. The examiner opined that the Veteran’s hearing loss was less likely than not related to his active military service because his entrance examination and his separation examinations were objectively normal. The Court of Appeals for Veterans Claims has held that the etiology of a Veteran’s hearing loss cannot be based solely on a Veteran’s “normal” hearing loss at entrance to and separation from service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner is to note any significant threshold shifts that occurred during service in addition to any potential acoustic traumas that may have occurred in-service. In this particular instance, the Veteran has provided credible lay statements that are corroborated by his personnel records that he was exposed high levels of noise as an ammo handler for artillery guns. Therefore, the Board finds that another VA examination is warranted for the examiner to evaluate whether or not the acoustic trauma during service is related to his current bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric condition to include PTSD is remanded. The Veteran was afforded a VA examination for PTSD in August 2013. The examiner concluded that the Veteran did not meet the DSM criteria for a PTSD diagnosis. The examiner diagnosed depressive disorder. However, the disorder was not attributed to the Veteran’s active military service. The rationale provided simply stated that his current depression was not due to or caused by his military service that took place over 40 years ago. No further explanation was provided. The Board finds the rationale for the opinion provided by the VA examiner in to be incomplete. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). Specifically, the VA examiner failed to consider the Veteran’s competent and credible statements; his wife’s lay statements; and post-service medical treatment records related to his depressive disorder. Apparently, the RO also found the initial report lacking and requested an addendum medical opinion in August 2013. The VA examiner stated that the first examiner was not available and that his examination report was reviewed. It noted the conclusion from the first report that the Veteran’s service was over 40 years ago and stated that further comment was not possible without resorting to mere speculation. As such, the Board deems the opinion also to be conclusory and thus inadequate for the Board to render a decision at this time. The Board’s review of the record has determined several issues that require more in-depth analysis from a medical professional. Neither VA examiner discussed the lay statements provided by the Veteran or his wife. In particular, his wife submitted a detailed letter in July 2012 explaining what her daily observations were during their 30-year plus marriage. The Veteran also reports difficulty sleeping, especially during thunder storms, which remind him of artillery fire during his tour of duty in Vietnam. Aside from the lay statements, post-service treatment records reveal the Veteran has been in therapy for his depression since 2012. Notably, during treatment in September 2014, the clinician recorded that the Veteran at some point during his active service was absent without leave (AWOL) and he may have been Court Martialed for his actions. A closer review of the Veteran’s personnel records shows that he was reduced in rank from Private First Class to Private in 1969. However, the record remains unclear as to what transpired for the rank reduction to have occurred. Based on the probative evidence cited above, remand is warranted to afford the Veteran another mental health examination. Additionally, updated VA treatment records should be associated with the record on remand. See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.) The matters are REMANDED for the following actions: 1. Update/Obtain VA treatment records from July 2016 to the present. Document all requests for information as well as responses in the claims file. 2. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss disability. The examiner is to provide an opinion whether is it at least likely as not his current bilateral hearing loss for VA purposes is related to an in-service injury, event, or disease. The examiner is to note/address: (a.) That the evidence has established that the Veteran was exposed to high levels of noise due to his duties and the circumstances of his military service (as an ammo handler for artillery gunners in Vietnam). (b.) Whether or not there were auditory threshold shifts during service that could account for his current bilateral hearing loss.   3. After completion of step #1, schedule the Veteran for an examination by an VA psychiatrist or psychologist to determine the nature and etiology of his acquired psychiatric disorder to include PTSD. The examiner is to provide an opinion whether is it at least likely as not related to an in-service injury, event, or disease. The examiner is to note and discuss, as appropriate: (a.) The lay statements from the Veteran and his wife, particularly her July 2012 statement discussing her daily observations of the Veteran during their marriage. See 7/15/2012 Third Party Correspondence. (b.) Mental health treatment records associated with the file particularly a September 9, 2014, treatment record from the Dublin VA that discusses the Veteran being potentially absent without leave (AWOL) and Court Martialed while serving on active duty. See 01/20/2015 Medical Treatment Record – Gov’t Facility. (Continued on the next page)   A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel