Citation Nr: 21072708 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 20-04 235 DATE: December 6, 2021 ORDER The petition to reopen the claim for entitlement to service connection for bilateral hearing loss is granted. The petition to reopen the claim for entitlement to service connection for tinnitus 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 rotator cuff tendonitis, right shoulder is remanded. Entitlement to service connection for right ankle injury is remanded. FINDINGS OF FACT 1. In an October 2014 rating decision, the RO denied service connection for bilateral hearing loss on the basis that a medical link between the Veteran's hearing loss and military service was not shown. The Veteran filed a timely notice of disagreement with this decision; the RO issued a statement of the case, but the Veteran did not file a timely substantive appeal, and the decision became final. 2. Evidence received since the October 2014 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim. 3. In an October 2014 rating decision, the RO denied service connection for tinnitus on the basis that a medical link between the Veteran's tinnitus and military service was not shown. The Veteran filed a timely notice of disagreement with this decision; the RO issued a statement of the case, but the Veteran did not file a timely substantive appeal, and the decision became final. 4. Evidence received since the October 2014 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus and raises a reasonable possibility of substantiating the claim. 5. The Veteran is competent to report, and has credibly reported, experiencing tinnitus within one year of service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for tinnitus. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for the grant of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to February 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in the January 2020 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge. However, in a statement dated October 2021, the Veteran, through his representative, withdrew this hearing request; thus, his request is deemed withdrawn. 1. The petition to reopen the claim for entitlement to service connection for bilateral hearing loss 2. The petition to reopen the claim for entitlement to service connection for tinnitus Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for bilateral hearing loss and tinnitus was initially denied in an October 2014 rating decision as the VA examination at that time indicated that the Veteran's hearing loss and tinnitus were not incurred in or related to his military service. The Veteran filed a timely notice of disagreement with this decision. In June 2016, the RO issued a statement of the case, but the Veteran did not file a timely substantive appeal, and the October 2014 rating decision became final. The Veteran filed a claim to reopen his service connection claims for bilateral hearing loss and tinnitus in 2018. Additional evidence was received in 2018 including a statement alleging acoustic trauma in service and a VA examination in June 2018. In light of the Veteran's additional statements and added VA examination report, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final October 2014 rating decision. Thus, the claims for service connection for bilateral hearing loss and tinnitus, are reopened. 3. Entitlement to service connection for tinnitus Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for Veterans Claims (Court) issued a decision adding tinnitus (as an organic disease of the nervous system) to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Veteran essentially contends that his tinnitus disability had its onset within one year of service, due to hazardous noise from gunfire, grenades, cannons, and trucks in service. See e.g., October 2014 VA Hearing Loss and Tinnitus examination report. The October 2014 examiner opined that the Veteran's tinnitus was less likely than not related to service because the discharge physical revealed he had normal hearing at the time of separation from the military. The 2018 VA examiner opined that the Veteran's tinnitus was less likely than not related to service because it was reported post-separation and there was no report of tinnitus in service and that current literature does not support late-onset noise induced tinnitus. The evidence of record includes diagnoses of tinnitus. As such, the first element of service connection is satisfied. The second criterion for service connection is medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran has consistently reported that he experienced acoustic trauma during service. The Veteran is competent to give evidence about what he experienced, including being exposed to grenade, gunfire, and cannon noise as well as truck noise, as this exposure is subject to lay observation. The Veteran has been consistent in his statements that this is the acoustic trauma that he sustained. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Thus, the second element is satisfied. The third criterion for service connection is medical evidence, or in certain circumstances, lay evidence, of a nexus between the current disability and the in-service disease or injury. The Veteran is competent to testify as to observable symptoms such as ringing in his ears, because these symptoms are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno, supra. As shown above, the Veteran has been consistent in his lay statements regarding noise exposure in service and he indicated that first experienced ringing in his ears within six months of service, and that this ringing has continued since then. The Board finds his assertions of ringing in the ears dating back to service to be credible. The Veteran's statements here establish continuous symptoms such as to enable a grant of service connection for tinnitus. The Board recognizes that in the VA opinions, the VA examiners reported, after reviewing the Veteran's service treatment records and conducting an audiological examination of the Veteran, that the Veteran's hearing was normal upon separation and in one instance the Veteran did not report tinnitus until 2008 and therefore tinnitus was less likely as not related to service. However, as discussed above, the Board finds that the Veteran is competent to offer lay testimony that it began within six months of leaving service. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's tinnitus was incurred in service. 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Board notes that the Veteran was most recently scheduled for VA Hearing Loss examination in 2019 to which the Veteran failed to report. According to correspondence received in June 2019, the Veteran stated that the exams were scheduled in Puerto Rico. The examination request lists the Veteran's address in Kissimmee, Florida, and the exam jurisdiction RO to be 317. However, the letter notifying the Veteran of the scheduled examination is not of record. Thus, remand is required so that the examinations be can rescheduled. The Board finds that the October 2014 and June 2018 VA examiners' opinions with regard to direct service connection is inadequate. The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In addition, the October 2014 VA examiner based the opinion on the fact that his hearing loss was normal at separation and cited to an Institute of Medicine (IOM) study, which found no scientific basis for delayed onset hearing loss or tinnitus. That study has been found to contain qualifying and contradictory statements, which the examiner did not address. McCray v. Wilkie, 31 Vet. App. 243 (2019). Thus, remand is necessary for an addendum opinion addressing whether the Veteran's bilateral hearing loss is directly related to his active service, or caused or aggravated by his now service-connected tinnitus. 2. Entitlement to service connection for rotator cuff tendonitis, right shoulder is remanded. The Veteran contends that service connection is warranted for a right shoulder disability. He was afforded a VA examination in June 2018 wherein he was noted to have right rotator cuff tendonitis. In August 2018, the VA examiner opined that the Veteran's claimed right shoulder disability was less likely than not incurred in or caused by his right shoulder trauma during service. The examiner noted that the Veteran had a right hand/arm/shoulder injury in the military and there were no permanent or chronic sequelae. It was further noted that the current symptoms are most likely from degenerative joint disease and deconditioning that are not relate to the military. However, the August 2018 opinion is internally inconsistent in that the examiner noted that the Veteran did not have a current condition of the right shoulder. It is also inconsistent with the June 2018 examination report noting the Veteran had a diagnosis of rotator cuff tendonitis. In light of the inadequacies of the opinions provided, remand is warranted for an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. Entitlement to service connection for right ankle injury is remanded. Regarding the Veteran's claim for a right ankle injury, he was afforded a VA examination in June 2018, but the examiner found no pathology warranting a diagnosis. The examiner noted some abnormal findings, such as pain on examination and the Veteran reported flare-ups consisting of pain. Based on this examination, the AOJ denied this claim finding that a persistent disability was not present. The Board finds a new examination to resolve whether the Veteran's abnormalities, however "minor," constitute a "disability" for VA purposes, is warranted. The Court held in Saunders v. Wilkie, 886 F.3d 1356 (2018), that pain, which causes a functional impairment of earning capacity, could be a disability for VA purposes. In this case, the VA examiner found pain of the right ankle during the examination. It is ambiguous if these abnormalities rise to the level of a functional impairment of earning capacity and, therefore, an addendum opinion with examination is warranted under these circumstances. Lastly, aside from the Veteran's active duty, he had some additional service of an unverified nature. According to the Veteran's DD Form 214, he had over 1 year and 6 months of prior service. He also stated that during annual training from 1967 through 1971 he was required to do heavy lifting which he contends caused long term damages to his right shoulder and right ankle. See statement received August 2018. The AOJ made no efforts to obtain any additional service treatment records for this additional service or verify any periods of ACDUTRA and Inactive Duty Training (INACDUTRA) if served during this time. The matters are REMANDED for the following actions: 1. Contact the Defense Finance and Accounting Service, the National Personnel Records Center and any other appropriate repository and request the Veteran's complete service treatment records, service personnel records, and personnel records regarding service in the Army Reserves and/or Army National Guard. Attempts to secure these records should be clearly documented in the file, along with any negative responses. 2. Then, forward the claims file to appropriate VA examiner(s) to provide addendum opinion as to the nature and etiology of the Veteran's claimed bilateral hearing loss. After reviewing the claims file the examiner should provide an opinion as to whether it is at least as likely as not (50/50 probability) that the Veteran's bilateral hearing loss was incurred during or within on year or is otherwise related to his active service, to include any in-service acoustic trauma or noise exposure. The examiner is asked to address the results of the hearing tests conducted in service, and if applicable, the theory of delayed or latent onset of hearing loss as it relates to the facts of the Veteran's case must be addressed. The examiner must explain how, if at all, medical treatise evidence (such as the IOM report referenced herein) contributed to the etiology opinion. The Board cautions the examiner to carefully explain the rationale of their medical opinion, especially when relying on any potentially qualifying or contradictory aspect of the IOM report or other medical texts. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Alternatively, the examiner is asked to determine whether the Veteran's bilateral hearing loss is caused or aggravated by his service-connected tinnitus. The examiner must include a complete rationale for all opinions expressed, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, VA and private treatment records, the Veteran's contentions, or other pertinent evidence in the record to support the conclusions reached. The examiner is asked to consider the Veteran's lay statements including the statement received in August 2018 stating that he experienced discomfort in his hears while performing weapons qualifications. 3. Return the file to the VA examiner who provided the August 2018 VA shoulder opinion. If the examiner is not available, another appropriate medical professional may be consulted. If the reviewer determines another VA examination is necessary, one should be scheduled Following thorough review of the Veteran's claims file, to include a copy of this remand, the examiner should then respond to the following: List all diagnoses of pertaining to the Veteran's right shoulder. Please specifically review the diagnoses of record. See e.g., June 2018 and August 2018 VA examination reports. Then, for EACH currently diagnosed right shoulder disability, provide an opinion as to whether it is at least as likely as not (50/50 probability) that the disorder began during active duty service, began (for degenerative disease/arthritis) within the year after the Veteran's separation from active duty service, or is otherwise related to active service, to include any incident of active duty service, such as the Veteran's in-service right shoulder complaints. The examiner must address service treatment records reflecting the Veteran's right shoulder pain in October 1966. The examiner must include a complete rationale for all opinions expressed, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, VA and private treatment records, the Veteran's contentions, or other pertinent evidence in the record to support the conclusions reached. 4. Schedule the Veteran for an appropriate VA examination for the Veteran's claimed right ankle disability. The examiner is asked to review the claims file before the examination. The examiner must thoroughly review the Veteran's claims file, to include a copy of this remand. The examiner should then respond to the following: Identify whether the Veteran has a currently diagnosed ankle disability? Note: disability refers to the functional impairment of earning capacity. Pain in the absence of a presently diagnosed condition can cause functional impairment. To establish a disability, the Veteran's pain must amount to a functional impairment. To opine as to the presence of a disability, the examiner must address whether the Veteran's pain reaches the level of a functional impairment of earning capacity. For each diagnosed right ankle disability (or, if there is no diagnosis, any discernible functional impairment of earning capacity of the right ankle), opine as to whether it is at least as likely as not (50/50 probability) that the disorder began during active duty service, began (for degenerative disease/arthritis), within the year after the Veteran's separation from active duty service, or is related to some incident of active duty service, such as the Veteran's in-service right ankle complaints. The examiner must include a complete rationale for all opinions expressed, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, VA and private treatment records, the Veteran's contentions, or other pertinent evidence in the record to support the conclusions reached. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.