Citation Nr: 1824176 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 14-44 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Zi-Heng Zhu INTRODUCTION The Veteran served on active duty from September 1965 to December 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In December 2014, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. The issue of entitlement to service connection for hearing loss is REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. An August 2007 RO decision denied service connection for hearing loss. The Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. 2. Evidence received since the August 2007 RO decision, was not previously of record and is not cumulative or redundant of evidence already of record, relates to a previously unestablished fact necessary to substantiate the claims of entitlement to service connection for hearing loss, and raises a reasonable possibility of substantiating the claim. 3. Resolving all reasonable doubt in favor of the Veteran, the probative evidence of record shows that the Veteran has continuously had symptoms of tinnitus since service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the previously denied claim of entitlement to service connection for hearing loss has been added to the record. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 2. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.306, 3.307(a)(6), 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The RO sent appropriate notice to the Veteran, discussing specific evidence, the particular legal requirements applicable to the Veteran's new and material evidence, service connection claim. The notice letter informed the appellant of the standard for new and material evidence and notified him of the reasons and bases for the prior denial of his claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the appellant and representative suggest actual knowledge of the elements necessary to reopen his previously denied claim for service connection, claims for service connection, and the increased rating claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Accordingly, the Board finds that any notice error with respect the Veteran's claims are harmless and does not preclude appellate consideration at this time. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Moreover, the Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied the duties to notify the appellant and had satisfied that duty prior to the most recent RO adjudication of this issue, which occurred in the November 2014 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured. 38 C.F.R. § 3.159(c)(4)(iii) (2017). While the evidence submitted is new, it is not material and therefore VA has not obtained an examination with respect to the claims decided. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104 , 7105 (2012). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). 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(a) (2017). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that 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 consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Hearing Loss Regarding the claim for service connection for hearing loss, an August 2007 rating decision denied service connection, based on a lack of evidence of an actual hearing disability for VA purposes. The Veteran was notified of these decisions and of his appellate rights. He did not submit any correspondence expressing disagreement with the RO decision within one year. 38 C.F.R. §§ 20.200, 20.201 (2017). In addition, no new and material evidence was received within one year. 38 C.F.R. § 3.156 (b) (2017). Nor have any relevant, official service department records been received since those last decisions. 38 C.F.R. § 3.156(c) (2017). Accordingly, the August 2007 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). In January 2011, the Veteran filed a claim to reopen the previously denied claim for hearing loss. A May 2011 rating decision reopened the claim, finding that new or material evidence had been submitted with regard to unestablished facts not already of record relating to the etiology of the claimed hearing disability. Specifically, the RO noted that a March 2011 VA found that the Veteran met the criteria for hearing loss disability for VA purposes. The Veteran had also raised arguments of in-service noise trauma and exposure. Evidence submitted or acquired after the previous denials of service connection includes VA treatment records, lay statements from the Veteran, hearing testimony before the undersigned, and a VA examination. The Board finds that a review of all of the evidence of record, to specifically include those that were submitted or acquired after the most recent denial of service connection does show evidence that can be considered both new and material, as to warrant reopening the claim. The Board notes that for a previously and finally denied claim to be reopened, the pending evidence meet both requirements of being new and material, meaning it cannot be redundant or cumulative, and must at least tend to speak to an fact of issue that was previously unestablished. 38 C.F.R. § 3.156(a) (2017). Here, not only does the newly acquired evidence of record, to include contemporaneous VA medical records, a VA examination, and statements from the Veteran, which are new, as they were not a part of the record prior to the previous decision, such evidence is also considered material, as it does tend to substantiate a previously unestablished fact, such as establishing a current hearing loss disability for VA purposes, and details of in-service exposure to noise trauma. While the Board recognizes that evidence may not be sufficient to be dispositive of the claim, it is, sufficient to overcome the low bar to constitute new and material evidence to reopen a claim. Accordingly, the Board finds that new and material evidence has been submitted and the claim for service connection for hearing loss must be reopened. To that extent only, the claim is allowed. The claim for service connection for hearing loss disability will be addressed in the remand below. Tinnitus The Veteran contends that tinnitus is the result of noise exposure during active service. Specifically, he claims that he was exposed to gunfire, mortar, and missile noise in service, to include while in combat in Vietnam, and that he began experiencing ringing in the ears during active service, which has continued to the present. A review of the competent evidence of record shows the Veteran has credibly reported symptoms of tinnitus continuously since service. Therefore, the Board finds that tinnitus can be service-connected based on continuity of symptomatology, and the claim for service connection for tinnitus must be granted. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§1110 (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Tinnitus, as an organic disease of the nervous system, is among the chronic diseases listed at 38 C.F.R. §3.309 (a), the Board finds that continuity of symptomatology may establish relationship to service. 38 C.F.R. §3.303(b) (2017). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer, (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 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. §3.102 (2017). Here, the Board finds that the Veteran, as a lay person, is both credible and competent to speak to the medical condition of tinnitus, and the fact that it has been continuous since active service. Specifically, the Board finds that, tinnitus, which manifests as ringing in the ears, is not the type of medical condition in which requires specialize medical knowledge or training to assess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A lay person, such as the Veteran, may competently speak to the fact that he perceives ringing in his ears. Similarly, the Veteran may also competently speak to the fact of when that condition started and if it has continued to the present. The Veteran has consistently asserted that he began experience ringing in the ears during service as a result of loud conditions while serving in combat conditions as a field artillery battery man, throughout his service in Vietnam. The Board notes that based on the Veteran's combat experience and the character of the Veteran's military occupation, noise exposure is conceded. The Board also finds that the Veteran's lay statements regarding the continuity of tinnitus symptoms to be credible. The Board notes that the Veteran has consistently noted that the ringing in the ears began during service and that those symptoms have continued to the present. He has provided that testimony during the December 2014 hearing before the undersigned, during medical examinations, and in written statements to VA. The Board finds the Veteran credible with regard to the assertions of continuity of tinnitus symptomatology since service. Therefore, based on the evidence and arguments presented, the Board finds that the Veteran's tinnitus was present during service and has a continuity of symptomatology since service. As the Board finds that the Veteran's lay statements have competently and credibly established continuity of symptomatology, and resolving reasonable doubt in favor of the Veteran, the claim for service connection must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. §5107 (2012); 38 C.F.R. §§3.102, 3.303(b) (2017). ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss disability is reopened. To that extent only, the claim is allowed. Entitlement to service connection for tinnitus is granted. REMAND The Board finds that additional development is required for the remaining claim on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim. With regard to the claim for service connection for hearing loss, the Board notes that the Veteran was provided VA examinations in August 2007 and March 2011. However, after a review of the examination reports, the Board finds those examination reports to be incomplete. When medical evidence is incomplete, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, additional development is required for the Board to fulfill its duty to the Veteran. With regard to the August 2007 examination, the Board finds that the opinion and rationale provide by the earlier VA examiners regarding the etiology of the Veteran's hearing loss to be speculative or incomplete. The examiner noted that there was insufficient evidence of the Veteran's hearing during and directly after separation to conclude that the Veteran did not leave service with hearing loss. The examiner noted that the Veteran's exit examination only noted a whisper test for hearing, which does not detect hearing loss at higher frequencies. The examiner stated that any conclusion regarding the etiology of the Veteran's hearing loss would be merely speculative. The Board also finds the March 2011 VA examination to be incomplete. That examiner relied exclusively on the Veteran's separation examination results as a basis for finding that the Veteran did not have hearing loss during service. The examiner used the separation examination whisper test, noting that as such examination did not note hearing loss upon exit, and therefore, the Veteran's hearing loss could not have been etiologically related to service noise exposure. The examiner found that hearing loss was due to the Veteran's post-service noise exposure at a body shop, working with lawn mowers, and recreational gun shooting. The Board finds the March 2011 opinion to be incomplete. That opinion did not address previous examinations. While the examiner relied on the Veteran's exit examination whisper test, the examiner did not address the previous VA examiner's comments on the fact that whispered voice examination are inadequate to comprehensively address hearing loss at all frequencies. The Board finds that that failure to address the inconsistency in evaluating the separation examination makes the opinion incomplete. Furthermore, the examiner related the Veteran's hearing loss on the Veteran's post-service exposure to noise, but did not justify how that noise exposure outweighed the noise exposure that the Veteran experienced during service. The Veteran, in later lay statements and testimony at the Board hearing, noted only to have worked in a body shop for a few years, and very infrequently shot guns recreationally after service. The Board finds that further consideration must be made to the specificity of the Veteran's noise exposure after service, especially noting those facts the Veteran presented during his hearing testimony before the undersigned. Therefore, the Board finds that remand is required for an addendum opinion which addresses the etiology his hearing loss. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private physicians for treatment not already of record. 3. Then, schedule the Veteran for a VA audiology examination. The examiner must review the claims file and should note that review in the report. The report should discuss the nature and etiology bilateral hearing loss disability and address whether it is at least as likely as not (50 percent or greater probability) that current bilateral hearing loss disability is related to or caused by any aspect of active service. Noise exposure during service has been conceded by the VA. The examiner must consider the Veteran's lay statements of symptoms during and directly after service. The examiner must reconcile any opinion with those previous examinations of record. The examiner should obtain a full noise exposure history from the Veteran and the record, both during and after service. If the examiner refers to, or uses the separation examination as basis for any opinion, the examiner must explicitly reconcile the use of whispered voice test results with the findings of the August 2007 VA examiner's opinion, and should explain whether whispered voice tests can detect high-frequency hearing loss. If the examiner attributes the hearing loss to post-service noise exposure, the examiner should specify what post-service noise exposure caused the hearing loss. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any portion of the hearing loss is due to service noise exposure. 4. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs