Citation Nr: 1808073	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  14-22 038	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral tinnitus. 

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to service connection for bilateral tinnitus.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans Affairs



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

I. Altendorfer, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from December 1966 to November 1968.
	
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. 

In July 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

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).


FINDINGS OF FACTS

1.  A November 2011 Board decision denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and bilateral tinnitus; he did not appeal that decision and it is final.

2.  Some of the evidence received since that prior denial relates to unestablished facts necessary to substantiate the bilateral hearing loss and bilateral tinnitus claims.
3.  The Veteran's tinnitus first manifested in service and has continued since.


CONCLUSIONS OF LAW

1.  New and material evidence has been submitted, and the claim of entitlement to service connection for bilateral hearing loss is reopened.  38 U.S.C. §§ 5108, 7104(b) (2012); 38 C.F.R. § 3.156 (2017).

2.  New and material evidence has been submitted, and the claim of entitlement to service connection for bilateral tinnitus is reopened.  38 U.S.C. §§ 5108, 7104(b) (2012); 38 C.F.R. § 3.156.

3.  The criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence 

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  The threshold to reopen a claim is low.  Shade v. Shinseki, 24 Vet. App. 110, 118   (2010).  Additionally, for the purposes of evaluating a request to reopen a previously denied claim, the credibility of new evidence will be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The Veteran's claims seeking entitlement to service connection for bilateral hearing loss and a tinnitus disability were previously denied in a November 2011 Board decision.  Because the Veteran did not appeal the decision to the Court or request reconsideration, the decision is final.  38 U.S.C. §§ 7103(a), 7104(b) (2012); 38 C.F.R. § 20.1100 (2017).

The evidence considered at the time of the November 2011 Board decision consisted of the Veteran's service treatment records, post-service treatment records, and the Veteran's lay statements.  The claims were denied because clinical records did not document a diagnosis of bilateral hearing loss for VA rating purposes.  See 38 C.F.R. §  3.385.  As for the tinnitus claim, the Board found that the evidence did not support a finding that the Veteran's tinnitus incurred coincident with service.  See 38 C.F.R. §  3.303.

The evidence received since that time includes a September 2011 private audiological examination that demonstrated bilateral sensorineural hearing loss.  The audiometric testing results reveal a hearing loss disability for the right ear.  In regards to both ears, progress notes recorded that "[a] bilateral moderate 'notched' sensorineural hearing loss . . . at frequencies above 2000 Hz."  In addition, word recognition tests displayed 100 percent for the right ear and 100 percent for the left ear.  Also, the Veteran testified in July 2017 that he occasionally cannot hear people and needs to ask people to repeat themselves.  

In regards to tinnitus, the September 2011 private audiological examination report documented an impression of tinnitus.  Further, the examiner recorded the Veteran's reports of "having 2 years of 'extensive artillery training with exposure to high explosive artillery rounds' with no ear protection."  During the July 2017 VA video conference hearing, the Veteran further elaborated on the excessive noise exposure in service.  The Veteran testified that he operated 175mm artillery units without hearing protection.  He recalled hearing intermitted tones of different pitches during service.  He further explained that "I didn't mention it during my discharge.  I don't remember that 'cause like I said I was 20 years old.  I was wanting to get home.  I wasn't concerned about tinnitus or some hearing loss that wasn't that noticeable."  

The evidence submitted into the recorded regarding bilateral hearing loss relates to unestablished facts necessary to substantiate the claim, namely, a current diagnosis.  Further, the evidence submitted into the recorded regarding bilateral tinnitus related to unestablished facts necessary to establish a nexus between the Veteran's current disability and his military service.  Accordingly, the evidence offered is new and material, and the claims of entitlement to service connection for bilateral hearing loss and bilateral tinnitus are reopened.

II. Service Connection

The Veteran seeks service connection for tinnitus, asserting that he first experienced tinnitus in service and has continued to experience it since that time.  

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R.  § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R.  § 3.303(a).  Consistent with this framework, service connection is warranted for a disease first 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).

Additionally, certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system.  38 C.F.R. §§ 3.307, 3.309(a).  The United States Court of Appeals for Veterans Claims (Court) recently held that tinnitus was a disease, rather than merely a symptom, and that 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."  Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).  The Court also indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b).  Id. at 272.

An October 2009 statement noted the Veteran's reports of ringing in his ears after separation from service.  More recently, the Veteran testified at a video conference hearing in July 2017.  There, the Veteran stated that he began experiencing symptoms of tinnitus, describing noises "like a rushing of wind or water and then intermittent tones of different pitches."  While the service treatment records are absent of complaints of tinnitus, the Veteran explained that he did not report his condition during the separation examination because he was "20 years old" and he wanted "to get home." 

The Veteran's service personnel records reflect a military occupational specialty (MOS) of artillery.  At the July 2017 hearing, the Veteran described operating 125mm artillery units without wearing any form of hearing protection.  

In July 2008, the Veteran was afforded a VA examination.  There, the VA examiner stated that "[t]he frequency and duration of vet's tinnitus was not characteristic of tinnitus associated with noise exposure."  In addition, the examiner noted that the Veteran "could not recall tinnitus being present in the service."  The examiner opined that "tinnitus was not caused by his duties in the service." 

Following the November 2011 Board decision, the Veteran submitted a private audiological opinion from Dr. D.Z.  The examiner documented the Veteran's reports of tinnitus in both ears.  The Veteran "describes the tinnitus as a combination of 'white noise' or 'rushing' of wind or water, intermittent tones with different pitches, and a beating sound---like a heartbeat."  The examination report documented an impression of tinnitus.  

The Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly during the course of this claim, including during the July 2017 hearing.  Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus).  In addition, the September 2011 audiological examination supports the Veteran's impression of tinnitus.  Thus, a current disability has been established.

Furthermore, regarding in-service noise exposure, the record reflects that the Veteran consistently described in-service noise exposure, with minimal hearing protection, to artillery fire.  The information provided on his DD Form 214 indicated his MOS as Field Artillery Basic-a specialty consistent with a high probability for hazardous noise exposure.  See VA Adjudication Procedure Manual, M21-1, Part III, Subpart iv, Chapter 4, Section B, paragraph 4(e).  The remaining question, then, is whether the Veteran's current tinnitus is related to that in-service acoustic trauma.

When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet.  App. 303, 305 (2007).  When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service.  Id.  If it does, such testimony is sufficient to establish service connection.  Id.  

In this instance, the Board finds the Veteran's statements regarding the in-service onset and continuation of his current tinnitus are sufficient to establish service connection.  See 38 C.F.R. § 3.309(a); Fountain, 27 Vet. App. at 271-72.  In so finding, it acknowledges that a July 2008 VA audiological examiner opined that the Veteran's current tinnitus was not related to service.  However since the examination, the Veteran has offered credible testimony of complaints of tinnitus, competent medical evidence documenting a diagnosis of tinnitus, and an explanation for the absence of in-service complaints of tinnitus.  In any event, in light of the positive and negative evidence of record, the Board finds that the evidence is at least in equipoise regarding whether he has current tinnitus that was incurred coincident with service.  Hence, affording him the benefit of the doubt, service connection for tinnitus is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).

ORDER

The claim of entitlement to service connection for a bilateral hearing loss is reopened, and to this extent only the appeal is granted.

The claim of entitlement to service connection for a tinnitus is reopened, service connection for tinnitus is granted.  


REMAND

While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran's bilateral hearing loss claim.

During the July 2017 video conference hearing, the Veteran asserted that the private July 2008 audiological examination is outdated and the severity of the Veteran's bilateral hearing loss has worsened since July 2008.  In light of that assertion, the Veteran should be afforded a contemporaneous VA examination to assess the current nature, extent, and severity of his bilateral hearing loss.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).

Updated VA treatment records should also be requested.  38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Update the file with any VA treatment records relevant to the Veteran's claim from October 2011 to the present.  If any requested records are unavailable, the Veteran and his representative should be notified of such.

2.  After the above has been completed to the extent possible, refer the VA claims file to an examiner with the appropriate expertise in order to address the etiology of the Veteran's bilateral hearing loss.  Schedule the Veteran for a VA audiological examination.  The examiner is requested to review the claims file in its entirety including any recently obtained treatment records.  

In rendering the opinions detailed below, please discuss the significance of the in-service noise exposure the Veteran has described, specifically the July 2017 testimony of in-service artillery fire and combat noise.  Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the opinions.  

The audiologist should review the claims file and respond to the following:

(a)  Is it at least as likely as not (50 percent probability or more) that the Veteran's current bilateral hearing loss disability is related to his period of active duty service from December 1966 to November 1968, to include his reported in-service excessive noise exposure?  Please explain why or why not, specifically discussing why his current hearing loss is/is not a delayed response to his in-service noise exposure.  Furthermore, if the audiologist attributes the Veteran's current hearing loss exclusively to post-service acoustic trauma, then he or she should explain the basis for the conclusion that the in-service acoustic trauma did not result in permanent hearing loss.

(b)  If it is less likely than not that the Veteran's current bilateral hearing loss had its clinical onset during his period of active service from December 1966 to November 1968, is it at least as likely as not that his current bilateral hearing loss had its clinical onset within one year of his separation from service in November 1968?  Please explain why or why not.

A discussion of the underlying reasons for any opinions expressed must be included in the audiologist's report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate.

3.  After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal.  If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond.  Then, return the case to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs