Citation Nr: 21027162 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 20-15 040 DATE: May 4, 2021 ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right shoulder disability. ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right shoulder disability is remanded. FINDING OF FACT Resolving all doubt in his favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's tinnitus is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from February 1981 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran's claim for entitlement to service connection for a right shoulder disability was denied in a rating decision from January 2006. That decision was not immediately appealed, and thus it became final. Some years later, the Veteran filed a claim for entitlement to service connection for a bilateral hearing loss disability, service connection for tinnitus, and a claim to reopen the previously denied right shoulder disability claim. A rating decision from February 2018 denied the hearing loss and tinnitus claims and denied reopening the right shoulder disability claim. The Veteran filed a timely Notice of Disagreement (NOD) in February 2019. The Veteran was issued a statement of the case (SOC) for the bilateral hearing loss and tinnitus claims only; he was not issued an SOC regarding whether new and material evidence was received to reopen the right shoulder disability claim. He filed a timely VA Form 9 in March 2020, and his claim was certified to the Board in April 2020. Service Connection To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for tinnitus The Veteran is claiming that his tinnitus is related to service. In addition to service connection on a direct basis, service connection for tinnitus can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. In a statement in support of his claim from January 2018, the Veteran wrote that his military occupational specialty (MOS) was as an infantryman, and that he was "around excessive small arms fire and loud vehicles." He also wrote that he began to "experience ringing in my ears," during his active duty service, and that it has continued since. In the Veteran's NOD from February 2019, he wrote that there was a shift in his hearing from his entrance exam to his separation exam. He wrote that the VA examination from February 2018 is inadequate, as his lay statements were not considered by the examiner. He wrote that during his career with the U.S. Post Office, he was not exposed to significant noise, and to the extent he was exposed, he was required to wear "OSHA approved hearing protection ... in any and all loud environments." In a more recent statement from March 2020, the Veteran again stated that his tinnitus and the ringing in his ears was present since service. He also noted that his in-service noise exposure is further proven by his expert qualifications with hand grenades, the M16 service rifle, and the M47 dragon shoulder-fired anti-tank guided missile system. These contentions were generally repeated in a statement from the Veteran's Representative in April 2020. Most recently in April 2021, the Veteran and his spouse testified before the undersigned Veterans Law Judge. The Veteran testified that he had ringing in his ears since service, and that his MOS and associated trainings/qualifications show that he was exposed to significant noise exposure. The Veteran also argued that the recent VA examination was inadequate, as his lay statements and in-service noise exposure were not fully considered. These claims were further argued by the Veteran's spouse, regarding symptoms of the Veteran's tinnitus. During the hearing, the Veteran also stated that he waited a while before making a claim of entitlement to service connection, because his father, an honorable World War II Veteran, was never able to prove his claim for benefits, which caused the Veteran to be discouraged. Turning to the criteria for entitlement to service connection, the Veteran is competent to testify that he has tinnitus. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Thus, the first criteria has been met, in that the Veteran has a current diagnosis. 38 C.F.R. § 3.303. Turning to the second criteria, the Veteran is competent to discuss that which he experienced directly, including his in-service noise exposure, as well as the current ringing in his ears. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has also confirmed the Veteran's service awards, weapons qualifications, and his MOS. His in-service noise exposure has therefore been confirmed, and the second criteria has also been met. 38 C.F.R. § 3.303. Turning to the third criteria, the Veteran was given a VA examination in February 2018. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed that the Veteran had a current diagnosis of tinnitus, which was "constant and in both ears." The examiner stated that the Veteran's tinnitus was less likely than not related to his military service. The following rationale was provided: The Vet's service record is silent for complaints of tinnitus. He is unable to state when it began, only that it began sometime after his military service. Therefore, it is less likely than not that the Vet's tinnitus was caused by his military service. As such, a negative etiological opinion was provided. In consideration of the above, the Board finds that the February 2018 VA examination is inadequate. To begin, while the examiner noted that a review of the Veteran's claims file took place, there is limited evidence that the Veteran's MOS or in-service noise exposure was adequately considered. The rationale includes no discussion of the Veteran's in-service noise exposure, and an earlier part of the exam, simply lists "firearms, truck and track vehicle noise." Furthermore, there is no indication that the Veteran's lay statements, which he is competent to provide, were considered. In fact, the examiner's rationale indicates that the Veteran was unable to state when the tinnitus began, but the Veteran clarified this in several lay statements, as well as the testimony he provided in April 2021. As such, the Board finds that the February 2018 VA examination is inadequate for determining the etiology of the Veteran's tinnitus. See further, Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes). The Board notes that the Veteran himself is of the opinion that such a link exists between his current tinnitus and active service. While a lay person, he is capable of opining on medical questions that fall within the realm of common knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Again, tinnitus, or ringing in the ears may be observed and described by a lay person. Jandreau, 492 F.3d 1372; Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, service connection for the recognized chronic disease can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Thus, recognizing that continuity of symptomatology requires the chronic disease to have manifested within one year of service, the Board finds the Veteran's statements and testimony as to tinnitus beginning during service, and then continuing since service, to be credible. See January 2018, February 2019 and March 2020 statements; See further April 2021 Board Hearing. Accordingly, any doubt regarding the onset of the Veteran's current tinnitus must be resolved in the Veteran's favor. Following a review of the medical and lay evidence of record, the Board finds the competent and credible statements of the Veteran as to ongoing tinnitus since separation from service to be of probative value. In conclusion, the Board notes the probative evidence of record and finds that the Veteran's current tinnitus began, at least, within one year of separation from service. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that evidence of noise exposure, current tinnitus, and continuity of symptoms since service, support a grant of entitlement to service connection for tinnitus. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran is claiming that his bilateral hearing loss disability is due to his military service. To begin, the Board incorporates its discussion from the sections above by reference. This includes the competent statements and testimony regarding symptoms of hearing loss and in-service noise exposure, as provided by the Veteran and his spouse. See Jandreau, Id. As also noted in the section above, the Veteran was given a VA examination in February 2018, where he was examined for his claimed bilateral hearing loss. As it relates to the Veteran's bilateral hearing loss, the examiner denied an etiological link to the Veteran's service, stating the following: The Vet had normal hearing documented on his entrance hearing exam and normal hearing on [November 15, 1986] a few years after he left the military. Therefore, it is less likely than not that the Veteran's hearing loss was caused by his military noise exposure. As such, a negative etiological opinion was provided. The Veteran however submitted a statement in March 2020. In that statement, the Veteran argues that his VA examination for bilateral hearing loss from February 2018 is inadequate. The Veteran states that the examiner did not review the Veteran's lay statements and did not give enough credence to his in-service acoustic trauma. The Veteran also traced the audiological examinations he was given in service, from November 1980 prior to enlistment, to May 1982 during service, and again on December 1982 while transitioning out of service. The Veteran argued that these examinations demonstrate a threshold shift in his ability to hear. He also argued that the February 2018 VA examiner was wrong to solely rely on the post-service exam from 1986, and that it is "impossible" that his hearing "while I was in the reserves [in 1986, was] ... better than it was before I enlisted." The Board has confirmed that the Veteran's service treatment records contain audiological recordings from the dates that the Veteran has identified. And as noted in the previous section, there is limited evidence that the Veteran's in service awards, qualifications, and/or MOS, which involved significant in-service noise exposure, were taken into account by the VA examiner. Furthermore, considering that the rationale provided by the VA examiner in February 2018 only addresses the entrance exam and an exam following the Veteran's separation from service, while ignoring two other audiological exams that purport to show a possible threshold shift in the Veteran's ability to hear, the Board finds that the February 2018 VA examination is inadequate as it relates to bilateral hearing loss. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr, Id. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. A VA medical examination and medical opinion are required by VA's duty to assist the Veteran in developing evidence to substantiate his claim to service connection. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right shoulder disability is remanded. As noted above, the Veteran's claim for entitlement to service connection for a right shoulder disability was denied in a rating decision from January 2006. That decision was not immediately appealed, and thus it became final. He then filed a claim to reopen the previously denied claim in January 2018. A rating decision dated February 2018 continued to deny entitlement to service connection for a right shoulder disability, finding that evidence submitted by the Veteran was not new and material. In response, the Veteran filed a timely Notice of Disagreement (NOD) date signed February 2018. As the RO has not yet issued a statement of the case (SOC) addressing the issue, the Board does not have jurisdiction over the matters. Thus, the Board must remand the issue for the RO to provide an SOC and to allow the Veteran an opportunity to perfect an appeal. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. For the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right shoulder disability, evaluate the evidence of record and issue a statement of the case (SOC) to the Veteran and the Veteran's Representative. The Veteran is advised that a timely Substantive Appeal will be necessary to perfect an appeal to the Board concerning this matter. 38 C.F.R. § 20.302 (b). 2. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 3. Schedule the Veteran for VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to assess the nature and etiology of the Veteran's claimed bilateral hearing loss disability. The entire record must be reviewed by the examiner. All necessary tests should be conducted. Based on the examination results and the review of the entire claims folder, the examiner is asked to opine as to the following: (a.) Confirm the current diagnosis of the Veteran's bilateral hearing loss disability. For any currently diagnosed disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's bilateral hearing loss is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale. The examiner is reminded that the Veteran has provided competent lay statements and testimony regarding his in-service noise exposure, which has been confirmed by the Board. The examiner is also reminded that the Veteran's service-treatment records contain audiological examinations from, at least, November 1980, May 1982, December 1982, and a post-service audiological record from November 1986. A detailed rationale for the opinions must be provided. The examiner are reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 4. After completing the above and ensuring that any other appropriate development of those claims is complete, readjudicate the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability. If the benefit on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his Representative, and allow an appropriate time for response. Thereafter, the case should be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.