Citation Nr: 21072227 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-53 437 DATE: December 2, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for Meniere's disease with hearing loss is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for Meniere's disease with hearing loss is remanded. FINDINGS OF FACT 1. A final September 2004 rating decision declined to find sufficient new and material evidence to reopen a service connection claim for Meniere's disease with hearing loss; newly received evidence raises a reasonable possibility of substantiating the claim. 2. The Veteran had noise exposure in service; tinnitus has been continuous since that time. CONCLUSIONS OF LAW 1. Evidence received to reopen the claim of entitlement to service connection for Meniere's disease with hearing loss is new and material and the claim is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1965 to October 1966. He testified during an October 2021 travel board hearing. A transcript of this proceeding has been associated with the record. New and Material Evidence First, the Veteran seeks to reopen a service connection claim for Meniere's disease with hearing loss on the basis of new and material evidence. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. The Veteran has repeatedly sought service connection for the current disability (variously claimed as Meniere's disease, bilateral hearing loss, and Meniere's disease with hearing loss). In pertinent part, the Veteran's request to reopen a service connection claim on the basis of new and material evidence was denied in a September 2004 rating decision. The Veteran did not perfect an appeal as to this matter or submit documentation constituting new and material evidence within the appropriate appeal period, such that the September 2004 rating decision became final. Rather, the Veteran requested to reopen the claim in May 2014. This request may be granted upon a finding that new and material evidence has been received since the final September 2004 rating decision. A positive finding is offered in this case. Notably, the September 2004 rating decision declined to reopen the service connection claim upon the Regional Office's (RO's) determination that the evidence did not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim. Specifically, the RO found that there was no evidence that the Veteran's preexisting condition was permanently aggravated by service. Evidence received since that time includes the Veteran's service treatment records (STRs) and his October 2021 hearing testimony, which show that the Veteran's relevant symptoms worsened during service until he was separated by reason of a physical disability. Given the probative value of this evidence, the Board finds that this new evidence raises a reasonable possibility of substantiating the claim. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). Upon a finding of new and material evidence, the application to reopen the service connection claim is hereby granted. Service Connection Next, the Veteran is pursuing service connection for tinnitus. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) Where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Tinnitus is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a), such that the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Here, there is competent evidence of current disability. Notably, the Veteran was diagnosed with recurrent tinnitus during April 2015 VA examination. Corresponding VA treatment records repeatedly cite to his history of such, and the Veteran offered competent testimony of his ongoing symptoms during the October 2021 hearing. See hearing transcript; Layno, 6 Vet. App. at 469; Miller, 32 Vet. App. at 249. Next, the Veteran experienced acoustic trauma during active duty. In this respect, his DD Form 214 denotes his military occupational specialty (MOS) as a fuel specialist. During the October 2021 hearing, the Veteran offered competent and credible testimony that his in-service duties were primarily performed on the flight line, causing prolonged and unprotected exposure to jet engines. Notably, there is no evidence which tends to contradict the Veteran's testimony; instead, his reports of in-service noise exposure are well-documented and consistent with the nature of his MOS. Id.; see, e.g., May 2014 claim; July 2015 Notice of Disagreement. Also during the October 2021 hearing, the Veteran reported that his tinnitus onset during service and has continued since that time. See hearing transcript, pgs. 9-10; see also April 2015 VA examination (identifying an onset of approximately 1965). While there is an absence of complaints or treatment for tinnitus for many years after service separation, the Board has resolved reasonable doubt in the Veteran's favor and finds that he had continuous symptoms of tinnitus since service separation, thus meeting the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). In offering this finding, the Board acknowledges that there are VA opinions of record addressing the etiology of the claimed tinnitus. However, the Board does not need to reach the weight assignable to these opinions, because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the chronic disease of tinnitus (38 C.F.R. § 3.309(a)) based on continuity of symptoms. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to adjudication of the remaining appeal. First, the record is in controversy as to the basis for the Veteran's military separation (specifically, whether it is attributable to the claimed disorder or an unrelated condition). As the claims file does not currently contain the Veteran's service personnel records, reasonable efforts should be made to obtain them. Further, the etiology of the Veteran's Meniere's disease with hearing loss was assessed by VA examiners in April 2015 and June 2015. These opinions are inadequate upon which to assess the merits of this appeal, as they engage improper regulatory standards for preexisting disorders and do not fully address the potential that such a preexisting disorder is present in this case. Accordingly, an addendum opinion is required at this time. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file a complete copy of the Veteran's service personnel records, particularly those pertinent to his military separation and the cause thereof. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Obtain an addendum opinion regarding the etiology of the Veteran's Meniere's disease with hearing loss. If the examiner determines that such an opinion may not be offered without first examining the Veteran, an examination should be scheduled. The claims file and a copy of this remand must be made available for review. In particular, the examiner is asked to offer medical opinions for each ear as to: (A) Opine whether it is clear and unmistakable (obvious and manifest) that the Veteran's Meniere's disease with hearing loss existed prior to service. (I) If so, opine whether it is clear and unmistakable (obvious and manifest) that the preexisting disability was not aggravated by service. In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability? In doing so, the examiner must address the Veteran's testimony that he did not enter service with any perceptible hearing loss, and the cause of his military separation. (II) If not, address whether: (a) It is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service, including conceded in-service noise exposure? In formulating the opinions, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A finding of "aggravation" does not require a permanent worsening of the disorder; rather, any incremental increase in a nonservice-connected condition attributable to a service-connected disability, whether permanent or not, constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran was competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.