Citation Nr: 21015479 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-00 244A DATE: March 17, 2021 ORDER The application to reopen the claim of entitlement to service connection for left ear hearing loss is granted. The application to reopen the claim of entitlement to service connection for traumatic brain injury (TBI) is granted. Entitlement to service connection for TBI is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for left ear hearing loss, to include as due to service-connected TBI, is remanded. FINDINGS OF FACT 1. In a December 1996 final rating decision, the VA regional office (RO) denied service connection for hearing loss and residuals, head injury. The Veteran appealed this decision regarding service connection for hearing loss in a February 1997 notice of disagreement, and the RO provided a statement of the case in March 1997. 2. The Veteran filed to reopen his claim for service connection for right ear hearing loss in June 2003. The Board notes that the RO denied the claim for hearing loss as a whole in an August 2003 rating decision, despite the Veteran only raising a claim for right ear hearing loss at the time. 3. The Veteran filed to reopen his claims for service connection for hearing loss and TBI in September 2011. The RO denied these claims in an October 2013 rating decision. The Veteran filed a timely notice of disagreement in December 2013. The RO submitted a statement of the case in January 2016. The Veteran filed a timely substantive appeal in January 2016. 4. The evidence received since the final December 1996 rating decision regarding service connection for residuals, head injury and August 2003 rating decision regarding service connection for hearing loss are not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claims. 5. The Veteran’s, re-characterized, TBI is etiologically related to his active service. 6. The Veteran’s tinnitus began during and is etiologically related to his active service. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the service connection claims for left ear hearing loss and TBI are reopened.  38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for TBI have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from July 1968 to April 1972, to include service in Vietnam. The Veteran requested a hearing before the Board of Veterans’ Appeals, which was scheduled for March 18, 2021. The Veteran requested to withdraw his hearing request so that the Board may proceed with a decision based on the evidence of record. See January 2021 Hearing Related. Therefore, the Veteran’s Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). New and Material Evidence Claims 1. Left ear hearing loss 2. TBI The Veteran’s claims for service connection for hearing loss and TBI were denied in a December 1996 rating decision. The Veteran did not appeal this decision and did not submit any new and material evidence during the appeal period. Therefore, the December 1996 rating decision became final. The Veteran’s hearing loss claim was again denied in an August 2003 rating decision. The Veteran did not appeal this decision and did not submit any new and material evidence during the appeal period. Therefore, the August 2003 rating decision became final. Once a decision becomes final, VA will only reopen it and decide it on the merits if new and material evidence is submitted. 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 and must raise a reasonable possibility of substantiating the claim.  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). The evidence received since the time of the RO’s December 1996 and August 2003 rating decisions include VA examinations, private opinions, lay statements, and medical treatment records. This evidence was not before adjudicators when the Veteran’s claims were last finally denied, and it is not cumulative or redundant of the evidence of record at the time of the last decision. The new evidence relates to unestablished facts necessary to substantiate the claims of service connection for left ear hearing loss and TBI and raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic conditions, an alternative method of establishing the third Shedden element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. § 3.309. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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). 3. TBI The Veteran contends his TBI is related to service. First, the evidence demonstrates a current disability. Specifically, the Veteran has been diagnosed with having TBI. See September 2012 Medical Treatment Record – Non-Government Facility, p. 7. Accordingly, the Board finds that the first element of service connection is established. See Shedden, 381 F.3d at 1166-67. Second, with regard to the in-service element, the Veteran’s service treatment records (STRs) reflect that he was hit in the head with a pallet in October 1980 while on duty. See January 2012 medical treatment Record – Government Facility, pp. 49 & 54. Therefore, the Board finds that the second element of service connection has also been established. Shedden, 381 F.3d at 1166-67. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed TBI and his service. As to this matter, the evidence conflicts. A July 2012 private neuropsychological evaluation report, provided by Dr. G.J., was associated with the Veteran’s claims file in September 2012. He diagnosed the Veteran as having TBI and noted numerous symptoms experienced by the Veteran. However, he did not provide an etiological opinion on the Veteran’s TBI. The Veteran underwent a VA examination in July 2013, in which the examiner only reviewed the Veteran’s VA treatment records, civilian medical records, and the July 2012 evaluation report but not the claims file. She noted a diagnosis of TBI from July 2012. The Veteran reported a head injury from October 1980 when a wooden palette hit him in his head on the left side. He lost consciousness for 15 to 30 minutes and was taken to the hospital. The July 2013 examiner opined that it was more likely than not the Veteran’s TBI occurred during and was a result of his military service based on the history of TBI with loss of consciousness, which resulted in facial fracture and problems with impulsivity, anger, irritability, memory, and concentration/attention since the October 1980 injury. However, the examiner could not make a determination without speculation as to what extent the Veteran’s symptoms were residuals of his TBI, mental health condition, or both. An addendum opinion was associated with the Veteran’s claims file in October 2013, provided by a different VA examination with a review of available records and without an examination. The October 2013 examiner concluded that the Veteran did not have a TBI related to military service. In support of her opinion, she explained that the Veteran had a facial fracture, but no sequelae and that the Veteran has had multiple issues related to his history of extensive crack cocaine use, sexual addition, and history linked to his obsessive-compulsive behaviors. Additionally, the impulsivity complaints did not become an issue until much later after his claim of TBI occurrence. Finally, the examiner noted that the Veteran has never been diagnosed with a concussion and the neurological issues have considered his “distant history of claim of head injury or drug use” related to his frontal lob impulsivity issues. After careful consideration, the Board finds that the evidence regarding nexus is at least in equipoise. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the third element of service connection is established. Shedden, 381 F.3d at 166-67. Thus, service connection for TBI is warranted. 4. Tinnitus The Veteran contends his tinnitus incurred in and is related to service. First, the evidence demonstrates a current disability. Specifically, the Veteran reported having always had tinnitus at a September 2013 VA examination. As tinnitus is a disability capable of lay observation, a current disability has been sufficiently demonstrated. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, the Board finds that the first element of service connection is established. See Shedden, 381 F.3d at 1166-67. Next, the Veteran’s STRs reflect that he was hit in the head with a pallet in October 1980, and the Veteran stated that he had had tinnitus since this head injury. See January 2012 medical treatment Record – Government Facility, pp. 49 & 54; December 2013 Third Party Correspondence. The Board finds the Veteran to be credible and his lay statements are corroborated by his STRs. Thus, the second element of service is also established. See Shedden, supra. Finally, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran’s tinnitus is related to active service. In May 2012, the Veteran appeared for a VA examination, in which the examiner noted the Veteran denied any ringing, buzzing, or whooshing sounds in his ears. She did not provide an etiological opinion. The Veteran underwent another VA examination in September 2013. The examiner opined it was less likely than not that the Veteran’s tinnitus was related to service. In support of her opinion, she explained that the Veteran’s left ear has an absence of objective noise injury while in service and found that the Veteran was unable to cite a specific event or circumstance that may have led to the onset. Furthermore, she noted that the Veteran previously denied the condition while noting that the Veteran reported always having it in a September 2013 medical note. Tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to report experiencing the symptom of ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran denied having tinnitus at his May 2012 VA examination, the Veteran testified in an April 2019 deposition that his tinnitus, ringing of his ears, began on active duty. See June 2019 CAVC Decision, p. 9. He also reported “always ha[ving] [tinnitus]” at a September 2013 audiology C&P examination consult. See March 2016 CAPRI, p. 113. His lay statements are credible and consistent with the circumstances of his service, particularly in light of his October 1980 head injury. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. When the evidence is in “relative equipoise, the law dictates that the Veteran prevails.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the reasons discussed above and resolving all reasonable doubt in favor of the Veteran, entitlement to service connection for tinnitus is warranted. REASONS FOR REMAND 5. Left ear hearing loss Upon review of the record, the Board finds that the claim must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. The Board finds that a new examination and etiological opinion is warranted for the Veteran’s claim. The Veteran contends that his left ear hearing loss is related to service, or in the alternative, is secondary to his service-connected TBI. The Veteran appeared for a VA examination in May 2012. The examiner concluded that the Veteran’s left ear hearing loss was less likely than not related to service based on the Institute of Medicine (IOM) study and because the Veteran’s left ear hearing threshold screenings and audiograms remained stabled during service. Additionally, the Veteran reported occupational noise exposure after service. The Veteran was afforded a VA examination in September 2013, in which the examiner opined the Veteran’s left ear hearing loss is less likely than not related to service because there was no evidence of noise injury in his left ear. Both VA examiners relied on the 2005 IOM study that is ultimately inconclusive as to the issue of delayed onset hearing loss. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Moreover, the Veteran has asserted that his left ear hearing loss is secondary to his service-connected TBI since his May 2012 and September 2013 VA examinations. Therefore, remand for a new examination is warranted to adequately address the etiology of the Veteran’s left ear hearing loss. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 3014 (2008).  The matters are REMANDED for the following actions: 1. Assist the Veteran in associating with the claims file any relevant outstanding treatment records. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran’s left ear hearing loss. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and conducting an examination of the Veteran, the examiner should respond to the following: (a.) State whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s left ear hearing loss had its onset in or is related to service, to include the Veteran’s October 1980 head injury, in which a pallet hit the Veteran’s on the left side of his head. The examiner is advised that the 2005 IOM study is inconclusive regarding delayed-onset hearing loss and is asked to conduct a search of the relevant literature prior to the opinion. (b.) State whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s left ear hearing loss was caused or aggravated by the Veteran’s service-connected TBI. AN OPINION AS TO BOTH CAUSATION AND AGGRAVATION IS REQUESTED. (c.) If the examiner finds that the Veteran’s left ear hearing loss was aggravated by her service-connected TBI, then he/she should specify the baseline level of disability of the left ear hearing loss prior to aggravation due to the service-connected TBI.  Note that aggravation means any incremental increase in disability in the left ear hearing loss (i.e., any additional impairment of earning capacity) resulting from the service-connected TBI.  The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran an opportunity for an examination. If an in-person examination cannot be provided, consider other appropriate alternatives, such as a telehealth examination. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.