Citation Nr: 20021069 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-41 584 DATE: March 24, 2020 ORDER The previously denied claim of entitlement to service connection for tinnitus is reopened; to that limited extent, the appeal is granted. The previously denied claim of entitlement to service connection for hearing loss is reopened; to that limited extent, the appeal is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. In January 2012, the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran’s claim for service connection for tinnitus and declined to reopen his previously denied claim for service connection for hearing loss; he was advised of the RO’s decision and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s January 2012 decision during the one-year period following the mailing of notice of that decision; nor was any new evidence received within a year. 3. New evidence received since the January 2012 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran’s claims for service connection for tinnitus and hearing loss, and raises a reasonable possibility of substantiating the claims. 4. The competent and credible evidence is at least in equipoise as to whether the Veteran has tinnitus related to his military service. CONCLUSIONS OF LAW 1. The RO’s January 2012 decision denying service connection for tinnitus and hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. 2. New and material evidence has been received to reopen the claims for service connection for tinnitus and hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 through March 1970. His commendations include the Purple Heart and Combat Infantry Badge. 1. The previously denied claim of entitlement to service connection for tinnitus is reopened; to that limited extent, the appeal is granted. 2. The previously denied claim of entitlement to service connection for hearing loss is reopened; to that limited extent, the appeal is granted. In January 2012, the RO denied the Veteran’s claim for service connection for tinnitus and declined to reopen the Veteran’s previously denied claim for service connection for hearing loss. The RO found there was no evidence of the incurrence of tinnitus in-service and new and material evidence was not received for the hearing loss claim. The original, May 1981 RO denial and subsequent January 2983 Board denial of hearing loss were based on a finding of normal hearing. The Veteran was advised of the RO’s January 2012 decision and of his appellate rights. No new evidence was received during the one-year period following mailing of notice of the RO’s decision. See 38 C.F.R. § 3.156(b). Nor did the Veteran initiate an appeal within that time frame. As a result, the RO’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. In order to reopen a finally adjudicated claim, new and material evidence must be submitted. 38 C.F.R. § 3.156. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case the Veteran has submitted new and material evidence in relation to his claims for service connection for tinnitus and hearing loss. In his February 2016 Notice of Disagreement, the Veteran reported that the ringing in his ears began after being near a landmine explosion and has remained constant since that time. He also reported that he was exposed to artillery and mortar fire. Although the Veteran previously reported ringing in his ears after the landmine explosion, he had not previously reported exposure to artillery and mortar fire. This evidence shows additional exposure to noise while in-service, and therefore additional trauma to his auditory system as compared to the singular landmine explosion previously reported. In February 2020, the Veteran’s representative submitted a medical treatise discussing acoustical trauma, which the representative contends identifies a causal relationship between tinnitus and/or hearing loss, and acute acoustic trauma. This evidence suggests a relationship between the Veteran’s in-service exposure to noise and his tinnitus and/or hearing loss that was not previously in the record. This directly relates to the nexus requirement and is therefore material. As new and material evidence has been received, the Veteran’s claims for service connection for tinnitus and hearing loss are reopened. 3. Service connection for tinnitus is granted. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including organic diseases of the nervous system—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the evidence supports the Veteran’s contention that his tinnitus is associated with his military service. In his separation report of medical history, the Veteran endorsed ear, nose, or throat troubles. In April 1981, he reported that his right ear vibrated when around loud noises. In the December 2011 VA examination, he reported that since the land mine explosion he has had buzzing/ringing in his ears that has gotten worse. In his February 2016 Notice of Disagreement, the Veteran continued to report that the ringing in his ears began after being near a landmine explosion and has remained constant since that time. He also reported that he was exposed to artillery and mortar fire. In May 2017 VA treatment records, the Veteran reported his tinnitus has been present since his service. This evidence shows consistent reports of tinnitus since his military service which included exposure to a landmine explosion as well as artillery and mortar fire. His reports of in-service noise exposure are consistent with his military records demonstrating treatment for a landmine explosion as well as his decorations including the Combat Infantry Badge and the Purple Heart. The Veteran is competent to describe the onset and progression of tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears in service and that he experienced such ringing ever since service “because ringing in the ears is capable of lay observation”). The Board acknowledges that the VA audiologist who evaluated the Veteran in December 2011 offered an unfavorable nexus opinion with respect to tinnitus. However, the examiner’s opinion is not adequate. For example, the examiner discounted the Veteran’s reports of tinnitus since service as subjective. As discussed above, the Veteran is competent to report his symptoms of tinnitus and has been consistent in his reports. The Board finds the Veteran’s competent and consistent reports of tinnitus symptoms since his military service more probative than the examiner’s opinion. On balance, and taking into account the totality of the evidence, including the Veteran’s in-service noise exposure, and his statements with respect to onset and continuity of symptoms, the Board is persuaded that the criteria for an award of service connection for tinnitus have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. Service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. A remand is necessary in order to obtain an adequate, and more recent, VA examination with an accompanying opinion that considers the medical treatise submitted by the Veteran. In December 2011, the Veteran was afforded a VA ear conditions examination. However, it does not appear he was given a hearing loss examination, which would have included audiometric test results. Audiometric data was recorded during the April 1981 VA examination. This did not show the Veteran met the criteria for a hearing loss disability. 38 C.F.R. § 3.385. However, this data is more than 40 years old and is of limited value in determining if the Veteran has a current disability. VA treatment records in May 2017 show the Veteran had hearing within normal limits, however the audiometric thresholds values were not recorded. The Veteran contends he has hearing loss. More contemporaneous evidence is necessary to determine if the Veteran has a current disability. Additionally, a new medical opinion is needed addressing whether the Veteran has hearing loss at least as likely as not due to his military service. As noted, the December 2011 examination is not adequate. In addition to the reasons discussed above, the examiner noted that the Veteran’s separation audiogram was normal. However, it is not clear if the examiner considered which threshold standards were utilized. It is unclear from the record if the Veteran’s hearing thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. ISO-ANSI units are currently used by VA to evaluate hearing loss. However, prior to January 1967, the Service Departments used ASA unit standard, and from January 1967 to December 1970, the Service Departments employed both unit standards. For measurements between January 1967 and December 1970, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. The March 1970 separation examination revealed auditory thresholds of 20, 10, 0, 20, 0, 20 decibels at, 500, 1000, , 2000, 3000, 4000, and 6000 Hertz, respectively in his right ear; and 20, 10, 0, 10, 0, 10 decibels at 250, 500, 1000, 1500, 2000, 3000, 4000, and 6000 Hertz, respectively in his left ear. After converting the audiometric data in the report of the Veteran’s March 1970 examination to ISO-ANSI units, the auditory thresholds are 35, 20, 10, 30, 5, and 30 decibels at, 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively in his right ear; and 35, 20, 10, 20, 5, and 20 decibels at, 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively in his left ear. The United States Court of Appeals for Veterans Claims (Court) has observed that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, the evidence shows that while the Veteran was presumed to have normal hearing upon his entrance to military service, after an extended period of service his hearing was no longer normal. Further, the examiner did not compare the Veteran’s March 1968 auditory thresholds, which showed 0 decibels at all frequencies tested, except for 6000, to his separation examination which showed deteriorated hearing within a period of two years. An updated VA examination is therefore necessary. The matters are REMANDED for the following action: 1. Obtain, and associate with the claims file, copies of records pertaining to any relevant VA treatment since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA audiology examination. All indicated tests should be conducted (including puretone audiometry and speech discrimination (Maryland CNC) testing) and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a hearing loss disability that had its onset in, or is otherwise attributable to, his period of active service. In so doing, the examiner should consider and discuss the Veteran’s credible lay statements pertaining to in-service noise exposure. The examiner should also consider and discuss the medical significance of hearing loss shown on the Veteran’s separation examination, when converted to ISO-ANSI units, as well as the worsening hearing when comparing the Veteran’s entrance audiological examination to his separation examination. The examiner should discuss the medical significance, if any, of the medical treatise submitted by the Veteran in February 2020. A complete medical rationale for all opinions expressed must be provided. A. P. Armstrong Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith Associate Counsel 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.