Citation Nr: 21066330 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-36 829 DATE: October 29, 2021 ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for tinnitus. 4. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss. ORDER New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability, and to that extent, the claim is granted. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for tinnitus, and to that extent, the claim is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss is remanded. FINDINGS OF FACT 1. In an unappealed June 2012 rating decision, the RO denied the Veteran's claim of entitlement to service connection for bilateral hearing loss disability. 2. Assuming its credibility, additional evidence received since the June 2012 rating decision, namely the Veteran' September 2015 VA Form 21-4138 (Statement in Support of Claim); August 2015, lay statement; September 2015 Private Treatment Records, including nexus opinion (Metro Health, Ear, Nose and Throat); January 29, 2016 Hearing Loss and Tinnitus Examination; Correspondence from counsel, including Medical Research Articles (receipt date, May 20, 2019), relates to evidence that is not cumulative or redundant and relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss. 3. In an unappealed June 2012 rating decision, the RO denied the Veteran's claim of entitlement to service connection for tinnitus. 4. Assuming its credibility, additional evidence received since the November 2011 rating decision, namely the Veteran's September 2015 VA Form 21-4138 (Statement in Support of Claim); August 2015, lay statement; January 29, 2016 Hearing Loss and Tinnitus Examination, relates to evidence that is not cumulative or redundant and relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus. CONCLUSIONS OF LAW 1. The June 2012 rating decision denying service connection for a claim of entitlement to service connection for a bilateral hearing loss disability is final 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2018). 2. Since the June 2012 rating decision new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability; therefore, the claim is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2018). 3. The June 2012 rating decision denying service connection for a claim of entitlement to tinnitus is final 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2018). 4. Since the June 2013 rating decision new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for a tinnitus disability; therefore, the claim is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from January 26, 1984 to January 25, 1986 and the Army National Guard from September 11, 1990 to January 18, 1991. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO) which reopened and denied the Veteran's claim for entitlement to service connection for a bilateral hearing loss and tinnitus disability. The Board notes that in June 2021 correspondence, the Veteran's attorney requested a copy of the Veteran's electronic claims file from March 2019. This Privacy Act request was fulfilled in October 2021. See October 25, 2021 VA Correspondence. The Board also notes that several attempts were made to obtain the Veteran's service treatment records for the period of service from September 22, 1990 through January 18, 1991. Unfortunately, the Veteran's service treatment records were unavailable for review. When service records are missing, there is a heightened duty on the Board to explain its findings and conclusions. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Lastly, the Board notes that the Veteran requested a Board hearing in his Form 9. See July 10, 2017, VA Form 9. In November 2020, the Veteran withdrew his request for a Board Hearing with respect to his service connection claims. See November 9, 2020 Third Party Correspondence. New and Material Evidence Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for tinnitus. The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claim for service connection for a bilateral hearing loss disability and tinnitus. The Board will discuss these claims together due to the common factual background. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1(1995). If the Board finds that new and material evidence has not been received, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Additionally, new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low evidentiary threshold has been 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. Shade, 24 Vet. App. at 118. Discussion Turning to the evidence of record in the evaluation of this Veteran's claims: In a June 2012 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a bilateral hearing loss and tinnitus. Regarding the Veteran's bilateral hearing loss, the RO found that there was no link between the Veteran's hearing loss and service. The RO also found that Veteran entered service with hearing loss and that his hearing loss had not been aggravated during service. Regarding the Veteran's tinnitus, the RO found that the Veteran's condition neither occurred in nor was caused by service. The RO found that the Veteran's tinnitus was associated with his non-service- connected bilateral hearing loss. See June 13, 2012 Rating Decision The Veteran was notified of the June 2012 rating decision and of his appellate rights; however, he did not submit a Notice of Disagreement (NOD). In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the June 2012 Rating Decision is final. In September 2015, the Veteran filed a petition to reopen his claim of entitlement to service connection for his bilateral hearing loss and tinnitus disabilities. See September 15, 2015, VA Form 21-4138. In a June 30, 2016 Rating Decision, which is the rating decision on appeal, the AOJ considered the Veteran's bilateral hearing loss and tinnitus claims reopened and denied the Veteran's claims on the merits. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). Evidence received since the last June 2012 rating decision includes the Veteran's September 2015 VA Form 21-4138 (Statement in Support of Claim); August 2015, Lay Statement from a fellow service member; September 2015 Private Treatment Records, including nexus opinion (Metro Health, Ear, Nose and Throat); January 29, 2016 Hearing Loss and Tinnitus Examination; Correspondence from counsel, including Research Articles (receipt date, May 20, 2019). Analysis The Board finds that this evidence is considered "new," as it was not of record at the time of the last final denial; it is also "material" because it relates to a previously unestablished fact, namely, that the Veteran' bilateral hearing loss and tinnitus may be related to service. Specifically, with respect to the Veteran's bilateral hearing loss, the evidence addresses whether the Veteran's bilateral hearing disability was caused or aggravated by service. With respect to the Veteran's tinnitus, this evidence addresses whether the Veteran's tinnitus is associated with the Veteran's service, including his bilateral hearing loss. Otherwise stated, this new evidence addresses the underlying reasons for the previous final denial. Hence, the Board finds that new and material evidence has been submitted for the Veteran's bilateral hearing loss and tinnitus claims. Accordingly, the Veteran's claim of entitlement to service connection for bilateral hearing loss and tinnitus is reopened. REASONS FOR REMAND Entitlement to service connection for a bilateral hearing loss disability is remanded. The Board finds that further development is required on this claim prior to adjudication. See, e.g., Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the Board may not make use of its own unsubstantiated medical conclusions). The Veteran contends that his current bilateral hearing loss disability is related to his military occupational specialty (MOS) as a Tactical Wire Specialist. The Veteran also asserts that during his second period of active duty from 1990 to 1991, he was exposed daily to excess noise from Infantry. See May 20, 2019 Correspondence; See also, DD-214 (s) (Tactical Wire Operations Specialist, first tour of duty; Infantry, Second tour of duty.) The Veteran has also contended that he had hearing loss resulting from a period of active duty for training, placing him in close proximity to mortar fire. See September 15, 2015 VA Form 21-4138, Statement in Support of Claim; See also, August 2015 Lay statement from service-member. Given his MOS, the Board concedes his exposure to acoustic trauma and hazardous military noise during service. Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303(a). For purposes of determining qualifying Reserve or National Guard service, active-duty service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease, or an injury incurred in the line of duty, or a period of inactive duty training (INACDUTRA) during which the person was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Annual training is an example of ACDUTRA, while weekend drills are INACDUTRA. The Veteran has been diagnosed with bilateral hearing loss for VA purposes. See April 24, 2012 Bilateral Hearing Loss and Tinnitus examination, pg. 2; May 23, 2012 Bilateral Hearing Loss and Tinnitus Medical Opinion; See also January 29, 2016, Bilateral Hearing Loss and Tinnitus examination, pgs. 4-5. Each VA examiner of record has rendered a negative nexus opinion to service, concluding that the Veteran's bilateral hearing loss pre-existed service and was not aggravated by service. In a May 2012 medical opinion, the VA examiner reasoned that the Veteran's pre-existing hearing loss was not aggravated beyond its normal progression when comparing the Veteran's August 1983 enlistment audiogram and his first clinical audiogram in 2011. See May 23, 2012, Medical Opinion, pg. 6-9. As a point of reference, the Board notes that the Veteran's August 1983 (Enlistment), 1985 (Separation) and 1989 audiograms (Army National Guard) show the following: August 10, 1983 Enlistment examination: Hertz 500 1000 2000 3000 4000 6000 Right Ear 5 5 10 20 15 30 Left Ear 5 5 5 30 25 30 October 28, 1985 Separation Examination: Hertz 500 1000 2000 3000 4000 6000 Right Ear 5 0 5 20 15 25 Left Ear 5 0 10 35 40 40 May 6, 1989 Periodic Exam for Officer Selection (Army National Guard) Hertz 500 1000 2000 3000 4000 6000 Right Ear 0 0 0 30 30 25 Left Ear 5 0 5 40 35 40 In the January 2016 Bilateral Hearing Loss and Tinnitus Medical Opinion, after comparing the Veteran's 1983, 1985 and 1989 audiograms, the examiner determined that the Veteran's pre-existing bilateral hearing disability was not aggravated by service, finding that there was no objective evidence of permanent statistically significant decrease in hearing sensitivity for either ear. The examiner also noted that the Veteran reported a significant history of noise exposure as an electrician; service medical records are silent for any report or complain of hearing loss, tinnitus or acoustic trauma. See January 2016 Bilateral Hearing Loss and Tinnitus Examination, pgs. 7-9. The Board observes however that the January 2016 examiner did not address the significance, if any, of threshold shifts between the Veteran's August 1983 enlistment examination and October 1985 separation examination. The Board also observes that the January 2016 examiner did not appear to take into account the Veteran's Military Occupational Specialty as a Tactical Wire Specialist or service in the infantry with respect to his exposure to in-service hazardous noise. See May 20, 2019 Correspondence; See also, DD-214 (s) (Tactical Wire Operations Specialist, first tour of duty; Infantry, second tour of duty.) Additionally, the Board observes that the Veteran has submitted through counsel, two medical research articles on sensorineural hearing loss and threshold shifts that advance the theory that a single synaptopathic exposure (traumatic event) can accelerate cochlear aging. See, Journal of Neuroscience, November 2009: Adding Insult to Injury: Cochlear Nerve Degeneration after "Temporary" Noise-Induced Hearing Loss; See also, December 2015 Synaptopathy in the Noise-Exposed and Aging Cochlea: Primary neural degeneration in Acquired Sensorineural Hearing Loss. (Receipt Date, May 20, 2019) The Board is cognizant that the Veteran also submitted a private nexus opinion from a physician, linking the Veteran's current disability to service, however there is no indication that the physician reviewed the Veteran's service treatment records in formulating this opinion, nor did the physician address whether the Veteran's bilateral hearing loss disability pre-exist his active-duty service. Therefore, the Board does not find this private opinion adequate for adjudication purposes. See September 15, 2015 Private Nexus opinion (H.N.H., DO). For the reasons stated above, however, the Board finds that an addendum medical opinion is required prior to adjudication for the Board to make a fully informed decision on this Veteran's bilateral hearing loss claim and for a VA examiner to opine whether the Veteran's bilateral hearing loss disability clearly and unmistakably pre-existed service, was NOT aggravated by service beyond the normal progression of the disease, with consideration of the significance of any threshold shifts during service, the Veteran's MOS and review of medical literature submitted by the Veteran's counsel that advances the theory that a single synaptopathic exposure (traumatic event) can accelerate cochlear aging. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss is remanded. The Veteran asserts that his tinnitus is related to service. The Veteran has also asserted that his tinnitus is a complication of his bilateral hearing loss. The Board finds that this theory of entitlement has been reasonably raised by the record. See May 20, 2019 Correspondence. As referenced above, the Veteran has been afforded VA examinations in April 2021 and January 2016 with respect to his Bilateral Hearing Loss and Tinnitus. In a subsequent medical opinion to the April 2021 examination, the VA examiner concluded that the Veteran's tinnitus was most likely associated with his bilateral hearing loss. See May 23, 2012, Medical Opinion, pg. 5. The Board observes that the while the January 2016 VA examiner rendered a negative nexus opinion for direct service connection, in view of the Board's remand for the Veteran's bilateral hearing loss disability, the May 2012 etiological opinion, and the Veteran's assertion that his tinnitus is a complication related to his bilateral hearing loss, the Board finds that remand is required on the Veteran's tinnitus claim. The Board finds that this secondary theory of entitlement has been reasonably raised by the record. See May 20, 2019 Correspondence. The Veteran's claim for service connection for tinnitus is inextricably intertwined with the issue of entitlement to service connection for bilateral hearing loss, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to service connection for tinnitus cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, these matters are REMANDED for the following action: 1. Forward the entire claims file to an audiologist for the purpose of obtaining an addendum opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus. A new examination is not required, unless it is deemed necessary by the examiner. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinion (s): a) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that any currently diagnosed bilateral hearing loss existed prior to the Veteran's entry into active service in 1984. b) If the examiner determines that there is clear and unmistakable evidence that bilateral hearing loss pre-existed service, is there clear and unmistakable evidence that the pre-existing bilateral hearing loss disability was NOT aggravated (the underlying disability was NOT increased in severity) beyond its normal progression in connection with the Veteran's active-duty service or any subsequent period of ACDUTRA? *Note: For purposes of this question, the examiner must discuss the significance of any threshold shifts between the Veteran's August 10, 1983 Enlistment examination and October 28, 1985 Separation examination. c) If there is not clear and unmistakable evidence that a bilateral hearing loss disability pre-existed service, or if there is not clear and unmistakable evidence that a pre-existing bilateral hearing loss disability was not worsened beyond its natural progression by service, is it at least as likely as not (50 percent or more probability) that any bilateral hearing loss disability had its onset in or is etiologically-related to noise exposure during the Veteran's active duty service, or was manifested within the first post-service year? For purposes of this question, the VA examiner must consider the Veteran's conceded in-service noise exposure. The Examiner must consider and discuss two articles referenced in May 20, 2019 Correspondence from the Veteran's counsel published in the Journal of Neuroscience in November 2009: Adding Insult to Injury: Cochlear Nerve Degeneration after "Temporary" Noise-Induced Hearing Loss; and a December 2015 publication: Synaptopathy in the Noise-Exposed and Aging Cochlea: Primary neural degeneration in Acquired Sensorineural Hearing Loss, Kujawa and Liberman. (Receipt Date, May 20, 2019.) The Examiner must provide a complete rationale for all opinions provided, citing all evidence and medical literature relied upon. If the Examiner cannot reach a conclusion on any issue without resorting to mere speculation, the Examiner must explain why. In rendering the above bilateral hearing loss opinion, the examiner is advised that the mere absence of in-service evidence of a hearing loss disability during service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. (Continued on next page.) 2. After completing the development requested above and any other development deemed necessary, readjudicate the Veteran's claim, including the Veteran's tinnitus claim as secondary to his bilateral hearing loss. If the benefit sought is not granted in full, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.