Citation Nr: 20002295 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 14-11 505 DATE: January 10, 2020 ORDER New and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. To that extent, the claim is granted. New and material evidence has been received to reopen a claim of service connection for tinnitus. To that extent, the claim is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for residuals of a broken nose is remanded. FINDINGS OF FACT 1. An August 2012 rating decision confirmed and continued the denial of service connection for bilateral hearing loss and tinnitus. 2. Evidence added to the record since the August 2012 decision provides a reasonable possibility of substantiating the claim for bilateral hearing loss. 3. Evidence added to the record since the August 2012 decision provides a reasonable possibility of substantiating the claim for tinnitus. 4. The Veteran’s tinnitus began during active service. CONCLUSIONS OF LAW 1. The August 2012 rating decision that confirmed and continued the denial of service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the August 2012 rating decision is new and material, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 3. Evidence received since the August 2012 rating decision is new and material, and the claim for service connection for tinnitus is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service from June 1965 to January 1969. In a November 2018 decision, the Board denied reopening claims of service connection for bilateral hearing loss and tinnitus; reopened and denied a claim of service connection for residuals of a broken nose; and granted a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating only that portion of the November 2018 decision that denied reopening claims of service connection for bilateral hearing loss and tinnitus and that denied service connection for residuals of a broken nose. The Court did not disturb the reopening of the claim of service connection for residuals of a broken nose and the grant of TDIU. Claims to Reopen The Veteran’s claims for bilateral hearing loss and tinnitus were initially denied in a May 2005 rating decision because his hearing loss and tinnitus neither occurred in or were caused by service. The Veteran disagreed with the decision in September 2005, but no action was taken. In December 2011, the Veteran filed claims to reopen claims of service connection for bilateral hearing loss and tinnitus. An August 2012 rating decision confirmed and continued the denial of service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal the August 2012 determination, and new and material evidence was not received within one year of the decision. Therefore, that rating decision became final. The question before the Board is whether new and material evidence has been submitted to reopen the claims. Bilateral Hearing Loss Evidence of record at the time of the August 2012 rating decision included the Veteran’s service treatment records (STRs); an March 2005 VA examination which found that the Veteran had bilateral hearing loss for VA purposes and noted the Veteran’s in-service noise exposure; an April 2012 VA examination; and VA treatment records. Since the August 2012 rating decision, the Veteran as reported that his hearing loss began during service and has persisted since. See April 2014 claim. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the Veteran’s claim. Since the August 2012 rating decision, the Veteran has provided competent and credible lay testimony that his hearing loss began during service and of continuing symptomatology since service. This evidence is neither cumulative nor redundant of the evidence of record at the time of the August 2012 rating decision and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. Tinnitus Evidence of record at the time of the August 2012 rating decision included the Veteran’s STRs which reflect a November 1965 incident when he was struck in the nose by another airman; an March 2005 VA examination on which the Veteran reported having periodic tinnitus since service; an April 2012 VA examination which provided a negative nexus opinion to acoustic trauma during service; and VA treatment records. Since the August 2012 rating decision, in July 2015 the Veteran has reported that his tinnitus began during service after he sustained a nose injury in November 1965 and he has persisted ever since. A new theory of causation for the same disease or injury that was the subject of a previously denied claim by the Board cannot be the basis to reopen the claim under 38 U.S.C. § 7105 (c). However, if the evidence supporting the Veteran’s new theory of causation constitutes new and material evidence, then the VA must reopen the Veteran’s claim under § 5108. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The evidence of record reflects that the Veteran sustained an injury to the nose during service in November 1965 and he has provided competent and credible lay testimony that his tinnitus began during service and he’s had continuing symptomatology since service. This suggests that the Veteran’s tinnitus may have started during service. Accordingly, the Board finds that the new theory of entitlement, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim on a basis that the Veteran’s tinnitus was due to his injury to his nose during service and has persisted since. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 110. The Board will consider the claim de novo. Service Connection The Board concludes that the Veteran has a current diagnosis of tinnitus that began during his active duty service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Because tinnitus is “subjective,” its existence is generally determined by whether or not the claimant claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has consistently reported that his tinnitus began during service and has continued since service. On March 2005 VA examination, the Veteran reported having periodic bilateral tinnitus since service. On April 2012 VA examination he also reported that he had had bilateral constant tinnitus since service. Additionally, in July 2015 he also reported that he had had tinnitus ever since he fractured his nose during service in November 1965. The Board finds that entitlement to service connection for tinnitus is warranted. The Veteran, himself, has reported that his tinnitus began during service, and that it has continued since service. Affording the Veteran, the benefit of the doubt, in consideration of the credible reports of ringing in the ears since to the present time, the Board finds that the Veteran’s tinnitus was incurred in service. Charles, 16 Vet. App. at 370. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. A medical opinion is needed for de novo consideration of the claim. An April 2012 VA examination is inadequate because the basis of the negative nexus opinion was that the Veteran’s hearing was normal on separation from service. The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). Entitlement to service connection for residuals of a broken nose is remanded. The Board cannot make a fully-informed decision on the issue of service connection for residuals of a broken nose because no VA examiner has opined whether any current disability affecting the Veteran’s nose or breathing (to include breathing difficulties and sleep apnea) is related to his in-service injury to his nose. The examination on remand must identify all diagnosed residuals of the inservice broken nose. Additionally, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for hearing loss or any residual of a broken nose since service. After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment since April 2019. 2. After the completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s hearing loss. Copies of all pertinent records must be made available to the examiner. Any indicated tests and studies (including audiometric studies) should be performed. Based on the examination and review of the record, the examiner should provide an opinion to the following: Is it at least as likely as not that the Veteran’s bilateral hearing loss, is related to an in-service injury, event, or disease, to include his conceded in-service noise exposure? The examiner should specifically consider and discuss as necessary the Veteran’s credible lay testimony that his hearing loss began in service and he has had continuing symptomatology since service. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner’s own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 3. After the completion (1), schedule the Veteran for an examination with an appropriate clinician to determine the likely etiology of his residuals of a broken nose. Based on the examination and review of the record, the examiner should provide an opinion to the following: (a) Identify all diagnosed disabilities (to include any difficulties breathing or sleep apnea) claimed to be associated with in-service fractured nose. (b) The examiner should specifically opine if the Veteran’s sleep apnea is a residual of the nose injury or a separately diagnosed disability. (c) Is it at least as likely as not that any diagnosed disability (to include sleep apnea, if diagnosed) is related to service, to include a result of the documented in-service injury when the Veteran was struck in the nose? A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner’s own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.