17-13 836
17-13 836
| Board of Vet. App. | Sep 18, 2017Background
- Veteran served 1943–1946 and 1950–1951; service treatment records unavailable (presumed destroyed).
- November 2009 RO rating decision denied service connection for bilateral hearing loss and tinnitus; Veteran did not appeal and no new evidence was submitted within one year, rendering the denial final.
- Veteran later submitted lay statements and private medical records plus a September 2013 VA exam diagnosing bilateral sensorineural hearing loss and tinnitus.
- 2013 VA examiner found current bilateral hearing loss and tinnitus but could not definitively attribute etiology to service due to multiple noise exposures (pre-, intra-, and post-service) and lack of service records; recommended ENT evaluation.
- Board found the post-2009 evidence was new and material to reopen both claims, credited the Veteran’s reports of in-service noise exposure (e.g., rifle expert badge), and resolved reasonable doubt in the Veteran’s favor for hearing loss; tinnitus was granted on a secondary basis to the service-connected hearing loss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new and material evidence was submitted to reopen bilateral hearing loss claim | New lay and medical evidence (diagnosis, VA exam) relate to unestablished facts and raise reasonable possibility to substantiate claim | Prior denial was final; reopened only if new and material evidence exists | Reopened: new and material evidence found to reopen claim for hearing loss |
| Whether new and material evidence was submitted to reopen tinnitus claim | New diagnosis and VA exam evidence raise reasonable possibility to substantiate claim | Prior final denial remains unless new and material evidence shown | Reopened: new and material evidence found to reopen claim for tinnitus |
| Entitlement to service connection for bilateral hearing loss | Hearing loss diagnosed; credible in-service noise exposure; benefit of doubt favors nexus to service | VA examiner could not eliminate non-service noise exposures; no service records proving onset in service | Granted: resolving doubt in Veteran’s favor, service connection for bilateral hearing loss awarded |
| Entitlement to service connection for tinnitus | Veteran links tinnitus to service; tinnitus may be associated with hearing loss | VA examiner found tinnitus less likely related to service and no continuity/presumptive evidence of onset in service | Granted on secondary basis: tinnitus service-connected as symptom/secondary to service-connected hearing loss |
Key Cases Cited
- Shade v. Shinseki, 24 Vet. App. 110 (2010) (low threshold for new and material evidence to reopen claims)
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA duty to assist and when examination is required on reopening)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt rule when evidence is in approximate balance)
- Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (persuasiveness of medical opinions requires adequate rationale)
- Jandreau v. Nicholson, 492 F.3d 1372 (2007) (limits on lay opinion competence for certain medical etiology issues)
- Walker v. Shinseki, 708 F.3d 1331 (2013) (rules on presumptive service connection/chronic disease)
- Fountain v. McDonald, 27 Vet. App. 258 (2015) (tinnitus recognized within scope of organic diseases of the nervous system for presumptive service connection)