Citation Nr: 1329847	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  10-07 361	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral hearing loss.

2.   Entitlement to service connection for bilateral hearing loss.

3.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for tinnitus.

4.  Entitlement to service connection for tinnitus.

5.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a damaged eardrum (tympanic membrane).


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from November 1964 to January 1965, and for approximately 7 additional months on active duty for training (ACDUTRA).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the Veteran's requests to reopen his claims of service connection for bilateral hearing loss, tinnitus, and a damaged eardrum (tympanic membrane).

In June 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  


FINDINGS OF FACT

1.  In an unappealed rating decision issued in May 2008, the RO denied the Veteran's request to reopen his claim for service connection for bilateral hearing loss.

2.  Evidence added to the record since the final May 2008 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss.

3.  Bilateral sensorineural hearing loss had its onset in service.

4.  In an unappealed rating decision issued in May 2008, the RO denied the Veteran's request to reopen his claim for service connection for tinnitus.

5.  Evidence added to the record since the final May 2008 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for tinnitus.

6.  Tinnitus had its onset in service.

7.  In an unappealed rating decision issued in May 2008, the RO denied the Veteran's request to reopen his claim for service connection for a damaged eardrum (tympanic membrane).

8.  Evidence added to the record since the final May 2008 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a damaged eardrum (tympanic membrane).


CONCLUSIONS OF LAW

1.  The May 2008 rating decision that denied the Veteran's request to reopen his claim of service connection for bilateral hearing loss is final.  38 U.S.C.A. § 7105(c) (West 2002).

2.  New and material evidence has been received to reopen the claim of service connection for bilateral hearing loss.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3.  Bilateral hearing loss was incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1131, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012).

4.  The May 2008 rating decision that denied the Veteran's request to reopen his claim of service connection for tinnitus is final.  38 U.S.C.A. § 7105(c) (West 2002).

5.  New and material evidence has been received to reopen the claim of service connection for tinnitus.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

6.  Tinnitus was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

7.  The May 2008 rating decision that denied the Veteran's request to reopen his claim of service connection for a damaged eardrum (tympanic membrane) is final.  38 U.S.C.A. § 7105(c) (West 2002).

8.  New and material evidence has not been received to reopen the claim of service connection for a damaged eardrum (tympanic membrane).  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Board is reopening and granting the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus.  As such, no discussion of VA's duty to notify and assist as to those issues is necessary.

With respect to the issue of whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a damaged eardrum (tympanic membrane), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).

The duty to notify was satisfied prior to the initial Agency of Original Jurisdiction (AOJ) decision by way of a letter sent to the Veteran in June 2009 that informed him of his duty and the VA's duty for obtaining evidence.  In addition, the letter met the notification requirements set out for service connection in Dingess v. Nicholson, 19 Vet. App. 473 (2006), and for claims to reopen in Kent v. Nicholson, 20 Vet. App. 1 (2006).

VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's service treatment records, private treatment records, Social Security Administration records, and lay statements have been obtained.  A medical opinion regarding the Veteran's claimed damaged eardrum (tympanic membrane) is not required because new and material evidence to reopen that finally adjudicated claim has not been presented or secured.  38 C.F.R. § 3.159(c)(4)(iii) (2012).

The Veteran has not indicated there are any additional records that VA should obtain on his behalf.  Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.

Analysis: New and Material Evidence Standard

A previously denied claim will be reopened if the claimant submits new and material evidence.  38 U.S.C.A. § 5108, 38 C.F.R. § 3.156(a).  If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted.

New evidence is defined as evidence not previously submitted to agency decision makers, and 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.  38 C.F.R. § 3.156(a).  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 Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.

Analysis: New and Material Evidence for Bilateral Hearing Loss and Tinnitus

The Board finds that the Veteran has submitted new and material evidence sufficient to reopen his claims for service connection for bilateral hearing loss and tinnitus.  Those claims were most recently denied in a May 2008 rating decision because the RO found that the Veteran did not submit new and material evidence as to his bilateral hearing loss, and did not have a diagnosis of tinnitus.  The May 2008 rating decision became final because no notice of disagreement or new and material evidence was submitted within one year of the date on which it was issued.  See 38 C.F.R. § 20.1103 (2012); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  The Veteran had previously been denied service connection for hearing loss in February 1967, February 1979, and September 1982, and had previously been denied service connection for tinnitus in September 1990.

Since May 2008, new evidence has been added to the claims file which is material to the Veteran's claims for service connection for bilateral hearing loss and tinnitus.  Specifically, in June 2009, the Veteran's private physician, Dr. Samuel Rizzo, performed an audiogram and diagnosed the Veteran with mild-to-severe sensorineural hearing loss bilaterally, and noted the Veteran's report of ringing in his ears.  Although a December 1964 VA examination included an audiogram showing qualifying hearing loss, that examiner did not diagnose either bilateral hearing loss or tinnitus at that time based on a finding that the Veteran's "audiogram hearing loss...is inconsistent with [his] ability to hear articulation and sounds in normal testing."  Thus, Dr. Rizzo's June 2009 diagnosis and findings as to bilateral hearing loss and tinnitus constitute new and material evidence.

As this evidence of a diagnosis was not available at the time of the May 2008 denial, it is new.  As it regards the reason for the denials of his claims for bilateral hearing loss and tinnitus, it is also material.  Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening his claims for service connection for bilateral hearing loss and tinnitus.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

Analysis: New and Material Evidence for a Damaged Eardrum (Tympanic Membrane)

The Board finds that the Veteran has not submitted new and material evidence sufficient to reopen his claim for service connection for a damaged eardrum (tympanic membrane).  That claim was most recently denied in a May 2008 rating decision because the RO found that the Veteran did not have a diagnosis of a damaged eardrum.  The May 2008 rating decision became final because no notice of disagreement or new and material evidence was submitted within one year of the date on which it was issued.  See 38 C.F.R. § 20.1103 (2012); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

Since May 2008, no new evidence has been added to the claims file that is material to the Veteran's claim for service connection for a damaged eardrum.  At the time of the May 2008 denial, the relevant evidence of record included the Veteran's service treatment records, as well as an April 2008 lay statement to the effect that he had sustained ear damage as a result of acoustic trauma during basic training.

The Board finds that the Veteran's report that he sustained ear damage as a result of acoustic trauma during basic training, which he reported at his June 2013 Board hearing and elsewhere, is not new because he had made that same report in an April 2008 statement that was before the RO at the time of the May 2008 denial.  Further, the Veteran's treatment records since May 2008 are not material because they do not relate to an unestablished fact necessary to substantiate the claim; specifically, they do not include evidence of a current diagnosis of a damaged eardrum (tympanic membrane), nor suggest a link between the claimed damaged eardrum and military service.  To the contrary, Dr. Rizzo found in his May 2009 report that the Veteran's tympanic membranes were within normal limits (WNL) bilaterally.

Accordingly, as none of the evidence shows the Veteran has a diagnosis of a damaged eardrum (tympanic membrane), and as the Veteran is not competent to diagnose that complex condition or differentiate it from his diagnosed bilateral sensorineural hearing loss without medical knowledge, the newly submitted evidence is not new and material, reasonable doubt does not apply, and the Veteran's appeal of the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a damaged eardrum (tympanic membrane) is denied.

Analysis: Service Connection for Bilateral Hearing Loss and Tinnitus

In no fewer than 33 letters to VA dating back to January 1967, as well as in sworn testimony provided at a June 2013 videoconference hearing before the undersigned Veterans Law Judge, the Veteran has consistently stated that his bilateral hearing loss and tinnitus resulted from acoustic trauma incurred during basic training when a 106 gun mounted on a Jeep was fired, and the Veteran-whose hearing service clinicians had deemed normal in April 1963 and February 1964, and who was without hearing protection when the gun fired-was unable to hear anything immediately thereafter, and has experienced ringing in his ears and reduced ability to hear ever since.  See, e.g., June 2013 transcript at pp. 3-4.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  Id. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service.  Hensley, supra, at 159.

The term "Veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty."  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991).

Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes."  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 of the U. S. Code or the prior corresponding provisions of law.  38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).

Service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA.  38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304.  Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process.  See Brooks v. Brown, 5 Vet. App. 484, 487 (1993).

Certain evidentiary presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases that manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service-are provided by law to assist Veterans in establishing service connection for a disability or disabilities.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309.  The advantages of these evidentiary presumptions do not extend to those whose service connection claim is based on a period of ACDUTRA or INACDUTRA.  Smith v. Shinseki, 24 Vet. App. 40, 44-45 (2010); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); Acciola v. Peake, 22 Vet. App. 320, 324 (2008); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim.")

The Board finds that the evidence supports an award of service connection for bilateral hearing loss and tinnitus.  First, the Veteran's private physician, Dr. Rizzo, provided a current diagnosis of bilateral sensorineural hearing loss with audiometric thresholds which qualify as a hearing disability in June 2009, during the pendency of the claim.  38 C.F.R. § 3.385.  Specifically, Dr. Rizzo performed an audiogram in May 2009, with the following results:

May 2009


HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
30
55
85
LEFT
35
35
35
60
75

The Veteran's bilateral hearing loss meets the threshold for cognizable hearing loss because it is 40 decibels or greater at 3000 and 4000 Hz bilaterally, and also because it is 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz.  38 C.F.R. § 3.385.

Additionally, Dr. Rizzo noted in his June 2009 report that the Veteran reported ringing in his ears.  The Board finds that the Veteran's self-diagnosis of tinnitus is competent based on his ability to observe the phenomenon with his own senses, and credible based on his consistent report of same.  Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a layperson is competent to observe tinnitus).

Second, the Veteran's service treatment records corroborate his consistent account of acoustic trauma from the firing of a mounted gun during basic training.  Specifically, in a Physical Examination Report in April 1963, an in-service clinician determined that the Veteran's hearing was normal.  Similarly, in a February 1964 Report of Medical Examination, an in-service clinician found that the Veteran scored 15/15-that is, a perfect score-on whispered voice (WV) testing bilaterally.  Likewise, in a February 1964 Report of Medical History, the Veteran reported that he had no ear trouble and had never used hearing aids.  By contrast, at the Veteran's November 1964 Report of Medical Examination upon entry into active service after basic training, a clinician found that his hearing test results were:

Nov. 1964


HERTZ



500
1000
2000
3000
4000
RIGHT
55
60
60
N/A
70
LEFT
50
50
50
N/A
55

The Board notes that while the November 1964 readings above have not been converted from American Standards Association (ASA) units to International Standard Organization (ISO) units, such conversion would add 15 decibels to the figure reported at 500 Hertz, 10 decibels to the figures reported at 1000, 2000, and 3000 Hertz, and 5 decibels to the figure reported at 4000 Hertz-thereby showing even greater hearing loss.  Consequently, the Board finds that the contemporaneous clinical findings in the Veteran's service treatment records showing normal hearing prior to basic training but cognizable hearing loss thereafter corroborate his account of an incident of acoustic trauma during basic training.

Third, the Board finds that the Veteran's statements linking his diagnosed bilateral sensorineural hearing loss and self-diagnosed tinnitus with the incident of acoustic trauma during basic training are credible based on his ongoing symptoms since service, which his frequent letters to VA since February 1967 corroborate; the consistency of his statements regarding the acoustic trauma incident and resulting symptoms over time; and, most significantly, the contemporaneous service treatment records documenting normal hearing on two occasions prior to basic training, and significant hearing loss thereafter.  Moreover, the Veteran's statements as to onset based on his ongoing experiencing of symptoms since the acoustic trauma are competent based on his ability to observe hearing loss and ringing in his ears.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).

The Board is cognizant of the January 1965 service treatment record in which a clinician diagnosed the Veteran with partial bilateral sensory neural deafness of undetermined etiology, and opined that it existed prior to service (EPTS) and was not incurred in the line of duty (LD).  However, the Board ascribes less probative value to this opinion than to the Veteran's because it is unaccompanied by any rationale, see Horn v. Shinseki, 25 Vet. App. 251 (2012), does not offer any explanation for why the Veteran's hearing would have been normal prior to basic training but significantly impaired thereafter, and concedes the absence of any determination as to etiology.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.")  See also Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999) (where conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given).

Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus and bilateral sensorineural hearing loss are related to service.  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus and bilateral sensorineural hearing loss.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

The service connection claim for bilateral sensorineural hearing loss is reopened.

Service connection for bilateral sensorineural hearing loss is granted.

The service connection claim for tinnitus is reopened.

Service connection for tinnitus is granted.

The claim for service connection for a damaged eardrum (tympanic membrane) is not reopened, and the appeal is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs