Citation Nr: 18123991
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-15 549
DATE:	August 3, 2018
ORDER
New and material evidence has been received to reopen the claim of entitlement to service connection for compound hyperopic astigmatism with presbyopia, originally claimed as injury to eyes with decreased vision.  The appeal is granted to that extent only. 
New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss.  The appeal is granted to that extent only. 
New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus.   
Entitlement to service connection for compound hyperopic astigmatism with presbyopia, originally claimed as injury to eyes with decreased vision, is denied.
Entitlement to service connection for tinnitus is granted.
REMANDED
Entitlement to service connection for bilateral hearing loss is remanded.
FINDINGS OF FACT
1. By a July 2009 rating decision, the Veteran’s claim of entitlement to service connection for compound hyperopic astigmatism with presbyopia was denied.
2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the July 2009 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for the eye disorder.
3. By a July 2009 rating decision, the Veteran’s claim of entitlement to service connection for bilateral hearing loss was denied.
4. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the July 2009 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for hearing loss. 
5. By a July 2009 rating decision, the Veteran’s claim of entitlement to service connection for tinnitus was denied.
6. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the July 2009 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus.
7.  The Veteran’s compound hyperopic astigmatism with presbyopia is not etiologically related to active service.
8. The Veteran’s tinnitus is etiologically related to active service.
CONCLUSIONS OF LAW
1. The July 2009 rating decision denying service connection for compound hyperopic astigmatism with presbyopia is final.  38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 
2. New and material evidence has been received to reopen the claim of entitlement to service connection for compound hyperopic astigmatism with presbyopia, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
3. The July 2009 rating decision denying service connection for bilateral hearing loss is final.  38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017).
4. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
5. The July 2009 rating decision denying service connection for tinnitus is final.  38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017).
6. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
7. The criteria for service connection for compound hyperopic astigmatism with presbyopia are not met.  38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 
8. The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from February 1972 to February 1975.
In April 2018, the Veteran testified at a Board hearing.  The transcript is of record.
I. New and Material Evidence
A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  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) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness).
The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  
A. Compound Hyperopic Astigmatism with Presbyopia, “Eye Disorder”
In the July 2009 rating decision, the Veteran’s claim for service connection was denied based on the finding that the Veteran’s eye disorder was not caused by service.  At the time of that decision the pertinent evidence of record included the Veteran’s service treatment records, statement in support of the claim dated March 2009, the report of a VA examination dated July 2009, and private treatment records.  The evidence received since the July 2009 rating decision includes the Veteran’s credible testimony from the April 2018 Board hearing and an eye evaluation from Dr. M.J.L.
This evidence is new and material as it provides evidence that pertains to whether the Veteran’s eye disorder is related to his active service, which is an unsubstantiated fact that is necessary to substantiate the claim.  Therefore, the claim is reopened.    
B. Bilateral Hearing Loss 
In the July 2009 rating decision, the Veteran’s claim for service connection was denied based on the finding that the Veteran’s bilateral hearing loss was not caused by service.  At the time of that decision the pertinent evidence of record included the Veteran’s service treatment records, statement in support of the claim dated March 2009, and the report of a VA examination dated July 2009.  The evidence received since the July 2009 rating decision includes the Veteran’s credible testimony from the April 2018 Board hearing and a medical opinion from a private audiologist.  
This evidence is new and material as it provides evidence that pertains to whether the Veteran’s bilateral hearing loss is related to his active service, which is an unsubstantiated fact that is necessary to substantiate the claim.  Therefore, the claim is reopened.    
C. Tinnitus.  
In the July 2009 rating decision, the Veteran’s claim for service connection was denied based on the finding that the Veteran’s tinnitus was not caused by service.  At the time of that decision the pertinent evidence of record included the Veteran’s service treatment records, statement in support of the claim dated March 2009, and the report of a VA examination dated July 2009.  The evidence received since the July 2009 rating decision includes the Veteran’s credible testimony from the April 2018 Board hearing and a medical opinion from a private audiologist.  
This evidence is new and material as it provides evidence that pertains to whether the Veteran’s tinnitus is related to his active service, which is an unsubstantiated fact that is necessary to substantiate the claim.  Therefore, the claim is reopened.    
II.  Service Connection 
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303.  “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present 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 or aggravated during service’ – the so-called “nexus” requirement.”  Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
A. Eye Disorder
The Board concludes that, while the Veteran has a current diagnosis of compound hyperopic astigmatism with presbyopia, and evidence shows that the Veteran suffered an eye injury during active service, the preponderance of the evidence weighs against finding that the Veteran’s eye disorder began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
At the hearing the Veteran testified that during active duty a tear gas container exploded a few feet from him causing projectiles to hit his face and eyes.  According to the Veteran, his vision has been diminished ever since his in-service injury.
The Veteran underwent a VA examination in July 2009 and reported an eye injury during basic training that caused him to suffer vision deterioration.  The examiner noted that the service treatment records established that the Veteran was diagnosed with a subconjunctival hemorrhage after the reported injury and that his eye injury cleared without complication.  Additionally, the VA examiner recorded that the Veteran’s medical history included a lid repair during active service for a congenital anomaly of the left eye and that his post-service medical records reported that the Veteran had a foreign body removed from his right eye in 2005.  Based on review of the record and physical examination, the VA examiner concluded that any visual field loss would strictly be the result of anatomical variation.  The examiner explained that the Veteran’s vision recovered to 20/20 in each eye at the time of discharge from active service.  The examiner also reported that the Veteran’s visual acuities are excellent, 20/20 in each eye; thus, there are no ocular complications which would result in visual field loss.  
In August 2013, the Veteran provided a statement from Dr. M.J.L., who diagnosed him with dry eyes secondary to tear gas burn.  However, Dr. M.J.L. did not provide a rationale for his conclusion that the Veteran’s dry eyes are related to tear gas.  A mere conclusion without an underlying rationale is of no probative value.  Miller v. West, 11 Vet. App. 345 (1998).  
The Veteran testified that he had had reduced visual acuity since the time of the in service accident.  The Veteran was found credible in his testimony.  Significantly, objective testing conducted during active duty documents that the Veteran's visual acuity was, in fact, normal at the time of his discharge examination.  The Veteran’s current statements were made many years after service.  The Veteran’s memory of the in-service events may have diminished over time.  The Board places greater probative weight on the contemporaneous objective medical findings of normal vision which were made during active duty over the Veteran's testimony which was provided many years after service.  
The Board gives significant probative weight to the July 2009 VA examiner.  This opinion was conducted by a health care professional, who conducted a physical examination and gave full consideration to the Veteran’s documented medical history and lay statements.  The examiner provided data from the service treatment records and post-service medical records to support his conclusions.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  As such, this opinion is well supported by an adequate rationale.  
The Board has fully considered all lay assertions of record.  The Veteran provided competent and credible testimony regarding his symptomology and in-service injury.  However, determining the etiology of the Veteran’s eye disorder requires specific medical knowledge and training as well as specialized testing which the Veteran is not shown to have.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Therefore, probative weight is given to the VA examiner in regard to the etiology of the Veteran’s eye disorder.    
As such, the evidence of record does not establish that the Veteran’s current eye disorder is related to active service.  Therefore, service connection is not warranted. 
B. Tinnitus
The Veteran testified that he has ringing in his ears that began in service due to acoustic trauma from working on the airfield and performing maintenance on aircraft.  Due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis.  See Charles v. Principi, 16 Vet. App. 370 (2002).  Thus, a current diagnosis is established.       
The Veteran testified that he was exposed to acoustic trauma while working on the airfield during active service, after which he noticed ringing in his ears which has continued ever since.  The Board finds the Veteran’s testimony competent and credible.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that the Board can weigh the lay testimony and make a determination as to whether the lay testimony supports a finding of in-service incurrence or continuity of symptomatology).  Therefore, the lay evidence establishes that the Veteran suffered acoustic trauma during active service.             
While there is no medical evidence linking the Veteran’s current diagnosis of tinnitus to active service, lay evidence can be competent and sufficient to establish etiology if the layperson is competent to identify the medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Veteran’s testimony establishes that he experienced ringing in his ears after working with aircraft in the military and has continued to have ringing in his ear ever since then.  Given the Veteran’s credible testimony establishing continuous symptoms since active service, the Board finds that tinnitus is etiologically related to the Veteran’s active service.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (finding that nothing in the regulatory or statutory provisions require both medical and competent lay evidence; rather, competent lay evidence can be sufficient in and of itself).
Therefore, service connection for tinnitus is warranted.
REASONS FOR REMAND
1. Entitlement to service connection for bilateral hearing loss is remanded.
Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 
The VA concedes that the Veteran had in-service exposure to acoustic trauma based on his military occupational specialty, which required him to work on aircrafts.
The Veteran attended a VA examination in July 2009.  The examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss is related to service.  The examiner noted that the service treatment records contained two separation examinations, one revealed mild high frequency hearing loss in the right ear and moderate high frequency hearing loss in the left ear and the other showed normal hearing bilaterally with improvement at certain threshold frequencies.  The examiner reported that there was not a significant difference in hearing between enlistment and separation.  Therefore, the examiner concluded that the Veteran’s hearing did not get worse during service and found it was less likely that his hearing loss is the result of active service.  
The Board notes that 38 C.F.R. § 3.385, establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation.  See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see also See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence).  Additionally, the VA examiner reported fluctuations in the Veteran’s puretone threshold in service from enlistment to separation and noted inconsistencies between the separation examinations; however, the rationale did not provide a well-reasoned explanation for these variations.  For these reasons, the Board finds the July 2009 opinion inadequate.         
The Board notes that the Veteran submitted a medical opinion from a private audiologist who reported that the Veteran has significant hearing loss in his left ear.  The audiologist opined that the Veteran’s noise exposure in service contributed to the Veteran’s hearing loss but stated it was impossible for him to determine to what extent the Veteran’s hearing loss is caused by active service.  The audiologist did not provide further rationale for his conclusion; thus, it is inadequate for adjudicative purposes.     
Therefore, the Board finds a remand is necessary for the VA examiner to address the opinion of the private audiologist, the Veteran’s lay statements regarding his symptomology, and the Veteran’s fluctuations in puretone threshold during service.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (finding lay evidence can be competent and sufficient to establish a diagnosis when the layperson is competent to identify the medical condition).  
The matter is REMANDED for the following action:
1. Obtain updated VA and/or private treatment records to the extent possible.  If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).
2. Obtain an addendum medical opinion from a medical professional with appropriate expertise.  The examiner should review the Veteran’s claims file, including a copy of this remand.  If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one.
Based on a review of the record and a new examination if necessary, the examiner must address the following:
Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hearing loss is related to his exposure to acoustic trauma in active service, or is caused by or aggravated by his exposure to acoustic trauma during military service.
The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.  
In all opinions rendered, the examiner is advised that the Veteran is competent and credible to report his symptoms and treatment history including his credible reports of bilateral hearing loss due to his in-service exposure to acoustic trauma with continued symptoms to the present.    
The examiner must specifically consider and discuss the Veteran's testimony, in addition to the lay statements of record regarding his in-service exposure to acoustic trauma and continuity of symptomology since service and the opinion and rationale should reflect such consideration.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The examiner must also specifically consider and address all fluctuations in puretone threshold during service and any inconsistencies noted within the treatment records.  The examiner’s rationale should reflect such consideration.
If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
3. Finally, readjudicate the appeal.  If the service connection sought for bilateral hearing loss remains denied, issue a supplemental statement of the case and return the case to the Board.

 
G. A. WASIK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. A. Prinsen, Associate Counsel 

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