Citation Nr: 1334929 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-07 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for a back disability. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for a bilateral hearing loss. 3. Entitlement to service connection for a bilateral hearing loss. 4. Whether new and material evidence has been submitted to reopen the claim for service connection for tinnitus. 5. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The appellant served with the United States Naval Reserve from August 1948 to March 1956. His service included active duty for training from June 12 to 25, 1949, and from July 25, 1953 to August 7, 1953. He also performed active duty for training in August 1955 and August 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2008 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Cleveland, Ohio, and New York, New York respectively. The Veteran was scheduled to appear for a scheduled Board video conference hearing in March 2011, but later informed VA that he was unable to attend the hearing due to health reasons. In February 2012 the Board remanded the case for additional development; namely, to confirm the appellant's duty status for dates in August 1955. There has been substantial compliance with this remand directive. Stegall v. West, 11 Vet. App. 168 (1998). In July 2013, the Board obtained an expert medical opinion from a physician with the Veterans Health Administration (VHA). The Appellant was provided a copy of that opinion in August 2013. See 38 C.F.R. § 20.903. In September 2013, he submitted additional evidence accompanied by a waiver of initial RO review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a final February 2002 decision, the RO declined to reopen the claim of entitlement to service connection for a back disability. Evidence submitted since that decision is not new and material and does not relate to an unestablished fact necessary to substantiate the claim. 2. In a final August 2005 decision, the RO declined to reopen the claims of entitlement to service connection for hearing loss and tinnitus. Evidence submitted since that decision is new and material and relates to an unestablished fact necessary to substantiate the claims. 3. The appellant's bilateral hearing loss is as likely as not attributable to service. 4. The appellant's tinnitus is as likely as not attributable to service. CONCLUSIONS OF LAW 1. The February 2002 rating decision declining to reopen the claim of entitlement to service connection for a back disability is the last final rating decision of record addressing this issue. 38 U.S.C.A. § 7105 (West 2002). 2. New and material has not been presented to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2013). 3. The August 2005 rating decision declining to reopen claims of entitlement to service connection for bilateral hearing loss and tinnitus is the last final rating decision of record addressing these issues. 38 U.S.C.A. § 7105. 4. New and material has been presented to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 5. With resolution of reasonable doubt in the appellant's favor, the appellant's bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 6. With resolution of reasonable doubt in the appellant's favor, the appellant's tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in December 2007 and July2008 of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and. The appellant was also informed of the requirements for submitting new and material evidence, and how disability ratings and effective dates are determined. The Board finds that all necessary assistance has been provided to the appellant. VA has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claims, including obtaining pertinent identified medical records. The appellant was also provided an opportunity to attend a Board hearing which he cancelled. The appellant was afforded a VA examination with respect to his application to reopen the claim for service connection for a back disability in July 2008 and March 2013, and an expert medical opinion was obtained in July 2013 regarding the claims of entitlement to service connection for bilateral hearing loss and tinnitus. These examination reports contain sufficient findings with which to properly evaluate the appellant's pending claims. The reports include the examiners' review of the appellant's claims file, the claimant's pertinent medical history, and in the case of the July2008 and March 2013 examinations, pertinent physical examination findings. Under these circumstances, VA has fulfilled its duty to notify and assist the appellant in the claims being decided herein. Adjudication of the claims at this juncture, without additional notification and/or development action, poses no risk of prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered. II. Analysis A. Pertinent Law and Regulations Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). That is, only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision makers. 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. 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). For purposes of the "new and material" evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21),(24) (West 2002); 38 C.F.R. § 3.6(a),(d) (2012). Active duty for training includes full- time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2013). Inactive duty for training is defined as duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23) (West 2002);38 C.F.R. § 3.6(d) (2013). Therefore, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131. See also Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (if claim relates to period of active duty for training, a disease or injury resulting in disability must have manifested itself during that period); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system, such as a sensorineural hearing loss, and arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Back Disability Facts Service treatment records show that the appellant was treated in August 1955 for blisters on toes of both feet and for sprain back. In April 1966, the appellant filed an informal claim of entitlement to service connection for a back disability asserting that he injured it in August 1955 while moving equipment out of a plane. He indicated that he had been treated in service. In June 1966, the RO received a record from a state Workmen's Compensation Board showing that the appellant had a healing sprain of the dorsi-lumbar region of the back and was first seen in August 1962. The duration of treatment was estimated to be one to two weeks. In July 1966, the RO denied entitlement to service connection for a back condition finding no record of complaint or treatment for the back during periods of active duty training. In March 1998, the appellant filed an application to reopen the claim of entitlement to service connection for a back disability. On file is a June 1998 Certificate of Attending Physician from W. Rossi, D.C., who reported that the appellant suffered continuing low back pain since 1985 with treatment since 1986. He diagnosed the appellant as having lumbar discogenic neuritis and lumbar myofascitis. In an October 1998 rating decision, the RO declined to reopen the claim of entitlement to service connection for a back disability on the basis that new and material evidence had not been submitted. In January 1999 the RO received a statement from Dr. Rossi reporting that the appellant was treated for chronic pain of the lumbar and thoracic spine. An intake questionnaire received in March 1999 from Arden Hill Hospital physical therapy department shows that the appellant had low back pain on the right side and fell into the corner of a brick wall in May of 1983 and was involved in a car accident in April 1986. These records show that the appellant began physical therapy at Arden Hill in 1983 and began chiropractic treatment with Dr. Rossi in 1984. Also in March 1999, the RO received medical entries from Arden Hill showing physical treatment from April 1996 through January 1997 for the back that included complaints of low back and thoracic pain and left lower extremity pain. In November 2000, the RO received a record from Dr. Rossi, dated in October 1999, reporting that the appellant sustained a back injury in August 1955 during his enlistment in the Navy and that this injury had been documented by Navy doctors. He said that since that time the appellant has continuously required various treatment by various doctors. Also in November 2000, the RO received a letter dated in April 2000 from Dr. Rossi who reported that the mid-back strain that the appellant had incurred while on active duty for training while unloading an airplane engine was more likely than not what had caused his current back problem. He said the appellant's fall on the job in 1986 was not related to the present claim. In February 2002, the RO declined to reopen the issue of entitlement to service connection for a back condition on the basis new and material evidence had not been submitted. A VA progress note in April 2008 shows that the appellant was receiving treatment, i.e., acupuncture, for low back pain. On file are private x-ray reports of the appellant's lumbar spine taken in June 2008 showing L3-L4, L4-L5 degenerative disc disease with spondylosis. A VA examination report in July 2008 reflects a diagnosis of early degenerative disc disease of the thoracic spine. The examiner opined that there was no evidence of back trauma in service and that the appellant had two more spinal traumas long after service, in 1983 and 1986, which the examiner said, could be the real reasons for his current spinal condition, with possible contribution of thoracotomy for cardiac surgery later on. The examiner added that the appellant's current spinal condition of degenerative disc disease was still rather mild and could be age-related. A VA progress note in January 2009 shows that the appellant was receiving treatment, i.e., acupuncture, for low back pain and spasm. In a statement dated in February 2009, the Appellant asserted that he strained his back unloading an airplane engine from a plane onto a forklift at Fort Bennet Field in New York. On file is a February 2009 office visit record from the office of J. Juliano, M.D., showing that the appellant was seen for back pain the upper right thoracic region as well as the lumbar region and that it was chronic and had been going on for years. In March 2009, the RO received private physical therapy records from Arden Hill showing complaints of low back pain and bilateral shoulder pain. In a March 2009 statement, the appellant reported that his right upper back pain never stopped since he injured it in August 1955 unloading an airplane engine. In an April 2009 statement, Dr. Rossi reported that the appellant was being treated for an upper back spinal condition and pain that was due to an injury he received while on active duty in the Navy. He said the condition still bothered him. A VA progress note in July 2009 shows the appellant had fallen in August 2008 down six to seven stairs, and had a second fall in January 2009 on stairs. He at that time experienced pain over his back and right leg which continued as well as developed a bruise over his right ankle and foot. He reportedly saw a private orthopedic surgeon who told him he had a back injury, but no fracture. He was also reportedly told he had degenerative joint disease of the lower back and a pinched nerve over his neck. He was assessed as having an old strain/sprain of the right ankle and lumbosacral spine. A private medical noted dated in September 2009 shows that the appellant had difficulty driving long distances due to back pain. In his November 2009 substantive appeal the appellant said he was submitting additional evidence in support of his claim of entitlement to service connection for a back disability. These records, most of which are duplicate copies of records already on file, include a January 2009 statement from Dr. Rossi reporting that the appellant was being treated for an upper back spinal disorder and pain that was due to an injury he received while on active duty in the Navy. The appellant alleged that the disorder still bothered him. Dr. Juliano reported in a January 2011 statement that the appellant had lumbar spinal stenosis. In October 2011, the appellant submitted a statement and additional records in support of his claim of entitlement to service connection for a back disability. He said that after injuring his back in August 1955 while stationed at Floyd Bennet Field, Brooklyn, New York, due to changing a plane engine, he was sent to sick bay and put on light duty. The records included a statement from Dr. Rossi that the appellant was being treated for an upper back spinal condition and pain that was due to an injury while on active duty in the Navy. At a March 2013 VA spine examination the appellant stated that he had injured his back in August 1955 while loading and unloading an airplane engine, and that he had experienced off and on back spasms ever since. He reported using over-the-counter pain medication as receiving treatment from a chiropractor and acupuncturist. The appellant was diagnosed with thoracic spondylosis without myelopathy and degenerative disc disease. The examiner remarked that the thoracic and lumbar spine showed mild-moderate changes on the imaging studies in 2008 and that the findings were commonly seen in the general population of the appellant's age. He said that based on the record review and information gathered from the exam and lack of evidence to substantiate the treatment of his back condition for almost 20 years after his military service, it was fair to mention that his claiming back condition was less likely related to his back injury which was incurred in August 1955 while in service. Discussion As noted, this appeal stems from a January 2009 rating decision that declined to reopen the appellant's claim of entitlement to service connection for a back disability on the basis that no new and material evidence had not been submitted. The last final determination addressing this issue is a February 2002 rating decision which also denied reopening the claim on the basis of no new and material evidence. Consequently, the Board must look to whether new and material evidence has been received since the February 2002 rating decision in order to reopen this claim. 38 U.S.C.A. § 5108. The evidence on file in March 2002 consisted of service treatment records showing a single medical entry in August 1955 for "sprain back". It also shows postservice back injuries including a Workman's Compensation injury in August 1962, a fall in May 1983, and a car accident in April 1986. In addition, the evidence includes treatment records beginning in the early to mid-1980s from Arden Hill medical facility and W. Rossi, D.C., showing treatment for upper and low back pain. The evidence further includes statements from Dr. Rossi, dated in 1999 and 2000, relating the appellant's back condition to an injury while on a period of active duty for training in August 1955 related to moving an airplane engine. The evidence associated with the claims file subsequent to the March 2002 adverse rating decision includes additional statements from Dr. Rossi, dated in January and April 2009, relating the appellant's upper back spinal condition to an injury he received on active duty in the Navy. The evidence also includes a VA examination reports in July 2008 and March 2013 negating a nexus between the appellant's present back disability and the "sprain back" on active duty for training in August 1955. In addition, there are statements from the appellant relating his present back disability to moving an airplane engine on active duty for training in August 1955. As noted, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade, 24 Vet. App. at 117. The Board finds, however, that the evidence received since the February 2002 denial does not meet the low threshold for reopening the claim of entitlement to service connection for a back disability. The new statements from Dr. Rossi are cumulative of his earlier statements on file; statements that were considered in March 2002. Similarly, the additional statements from the appellant relating his present back disability to a back injury while on active duty for training in August 1955 are cumulative of statement he made when he filed his initial claim in April 1966. In addition, the July 2008 and March 2013 VA examination reports negate a nexus between the appellant's present back disability and a back injury while on active duty for training in August 1955, and therefore do not raise a reasonable possibility of substantiating the claim. In sum, the evidence received since the February 2002 rating decision is cumulative and redundant of evidence of record at the time of that decision. It fails to raise a reasonable possibility of substantiating the claim by failing to show that the appellant's present back disability is related to a period of active duty for training or inactive duty for training. In as much as the appellant has not carried his initial burden of submitting new and material evidence with respect to reopening the claim of entitlement to service connection for a back disability, the benefit-of-the- doubt rule is not applicable to this case. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). C. Claim to Reopen Service Connection for Bilateral Hearing Loss and Tinnitus Facts The appellant's enlistment examination into the United States Naval Reserve in August 1948 shows that he had hearing of 15/15 in the right and left ears. A March 1956 examination report also reflects hearing acuity of 15/15 in each ear. In October 1956, he reported having an episode of Aero-titis in August 1955. The treatment record notes that he had been receiving treatment by a private physician since August 1956 for "Catarrahal otitis media". On file is an October 1956 statement from W. Karutz, M.D., certifying that the appellant had been under his care since August 1956 for a catarrahal otitis media, bilateral, that happened after flying. He said he felt that the appellant should not be doing any flying at that time. Audiological studies in November 1956 revealed bilateral conductive loss. In January 1957, the appellant was referred to an otolaryngologist who noted that the appellant participated in organized reserve duty one weekend each month. The appellant claimed that his hearing loss resulted from flights on an R5D (DC-6) in August 1955 and August 1956. He was noted to have no other aircraft experiences. Audiometric studies were repeated in February 1957 at which time the appellant reported progressive bilateral hearing loss since August 1955. The otolaryngologist reported that audiometric studies revealed a bilateral conductive deafness typical of otosclerosis. The examiner said that since the otolaryngology examination was negative and Eustachian tubes were patent by the Toynbee test, he did not feel that the appellant's difficulty was caused by aero-titis. The examiner changed the appellant's PULHES to H-4. A PULHES profile reflects a service person's overall physical condition on a scale of 1 (high level or fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). Hence, the assignment of an H-4 for hearing represented a finding that the appellant's hearing disability was so severe that he was unfit for service. The service treatment records do not reflect any complaints, findings or treatment for tinnitus. In June 1960, the appellant filed a claim of entitlement to service connection for bilateral deafness since August 1955. He indicated that he did not receive treatment in service for deafness of both ears, but had been discharged for deafness as a result of blockage of ears after a plane flight during training. The Appellant complained of having difficulty hearing at a VA examination in September 1960. He was diagnosed as having bilateral hearing loss, conductive. In a rating decision dated in January 1961, the RO denied the claim of entitlement to service connection for defective hearing, finding no evidence that it was incurred during a period of training duty. In May 1962, the RO received an August 1956 statement from Wallace Karutz, M.D, who advised against the appellant flying for some time due to his condition. Also in May 1962, the RO received an April 1957 statement from Dr. Karutz who reported examining the appellant in September 1956. He relayed the appellant's report of difficulty hearing after flying. An audiogram revealed a severe conductive hearing loss. Dr. Karutz said he performed a tubal insuflation which allowed the appellant to regain "a great deal" of his hearing. Dr. Karutz remarked that his impression at that time was that the appellant had bilateral aero-otitis. In April 1963, the RO received examination transcripts from Morris Brooks, M.D., showing treatment from December 1962 to April 1963. At the December 1962 visit the appellant explained that in August 1955 he had fallen asleep while on an unpressurized flight 5000 to 7000 thousand feet up and awoke on the descent at 500 to 1000 feet. He reportedly felt a sharp pain in his ears and felt deaf. He said that one to two months later he noticed "whining noises" in the left ear and said his hearing never returned to its original level. He reported that the same thing occurred in August 1956 following the same flight. He also reported that prior to the two flights he had been swimming. He was given an impression of original aqua-aero otitis secondary to aquatic sinusitis - To rule out Otosclerosis. He was prescribed Narakon plain (nose drops) and terrastatin. A later entry in December 1962, as well in April 1963, shows hearing improvement. Records show that the appellant underwent a left stapedectomy in 1968 that was not deemed to be successful, and a right stapedectomy in 1983 that was reported as being successful (these records are not on file). A March 1989 VA Certificate of Attending Physician notes a history of the appellant suffering an ear problem in 1955 during an airplane descent. The incident caused a bloody discharge from the appellant's ear and hearing loss. He was diagnosed as having hearing loss and tinnitus. In November 1989, the RO continued the denial of the claim of entitlement to service connection for a hearing condition. A VA Certificate of Attending Physician dated in November 1989 shows that the appellant had a history of ringing in his ear that was unbearable. He was also noted to have undergone a stapedectomy in 1983. He was assessed as possible cochlear otosclerosis on the basis of history. In January 1990, the RO denied reopening the appellant's claim for service connection for a hearing condition on the basis that new and material evidence had not been submitted. On file is a letter dated in July 1992 from Harry Blum, M.D., who said that he recollected writing a letter for the appellant many years earlier regarding an ear condition that he claimed was the result of his flying in the Navy. He also said that he did not remember the exact details of the letter. In January 1993, the RO received a December 1992 letter from Seth U. Thaler, M.D., stating that the appellant had a long and convoluted history that dated back to 1955 when he had some ear pain following a flight. The appellant indicated that he had been told by various doctors that his hearing loss was and was not due to his Navy flights. Dr. Thaler further reported that the appellant underwent a right stapedectomy in 1983. A stapedectomy is an operation to correct a hearing loss caused by a disease called otosclerosis and Dr. Thaler found that it was not related to any event that took place in the Navy. He said a hearing test in January 1992 revealed a mild to moderate nerve type hearing loss in the right ear and a profound nerve type loss in the left ear. He asked that the case be reviewed with the appellant's contentions in mind regarding the constant aggravating noise (tinnitus) the appellant experienced in his left ear. In January 1993, the RO declined to reopen the appellant's claim of entitlement to service connection for a hearing condition on the basis that new and material evidence had not been submitted. A May 1996 VA Certificate of Attending Physician and progress note, dated the same, shows that audiological results revealed sensorineural hearing loss in the right ear and no response in the left ear. The progress note reflects a history of ear pain and bloody otorrhea following a seven hour flight. The appellant reported that he had been told of aerotitis. It also shows that he had left ear tinnitus in 1987. An April 1998 VA Certificate of Attending Physician shows that the appellant had substantial hearing loss associated with tinnitus. He said the onset occurrence was when the appellant was flying an aircraft in the military. He also said that the appellant was recently seen by an ENT (ear, nose and throat) specialist who believes his hearing loss may be secondary to trauma he sustained in the military. He went on to remark that he did not have the report. In April 1998, the RO denied reopening the appellant's claim for service connection for a hearing condition on the basis that new and material evidence had not been submitted. A July 1998 VA Certificate of Attending Physician shows that the appellant had a history of otosclerosis while in the Navy and had decompression/aerotitis to the left ear in service in 1955. He was also noted to have undergone a left stapedectomy in 1968 which was not successful and a right stapedectomy in 1983 that was successful. He was assessed as having profound deafness in the left ear and moderate/severe sensorineural hearing loss in the right ear. He was also assessed as having otosclerosis barotraumas in both ears. He was advised to get a hearing aid for the right ear. In an October 1998 rating decision, the RO declined to reopen the claim of entitlement to service connection for hearing loss. In January 1999, the RO received a December 1998 "To Whom It May Concern" letter, from Jayde M. Steckowych, M.D., who reported that the appellant had a history of otosclerosis as well as barotraumas during the period he served in the Navy which he said went from the late 1940s to 1960. He said he was enclosing evidence showing that that there were barotraumas associated with otosclerosis and it was not purely otosclerosis which had caused his hearing loss. In a September 1999 rating decision, the RO denied reopening the claim of entitlement to service connection for hearing loss. In a December 1998 "To Whom It May Concern" letter, Dr. Steckowych said that the appellant had been seen in August 1999 and was found to have lots of retraction and some fluid in both ears, but no sign of infection. Dr. Steckowych reported in May 1999 that the appellant had a history of otosclerosis and barotraumas during his Navy service in the late 1940s to 1960s. On file is an October 1999 private audiogram conducted by Dr. Steckowych showing moderate to severe mixed hearing loss in the right ear with good word recognition and profound hearing loss in the left ear. In a November 1999 rating decision, the RO denied reopening the claim of entitlement to service connection for hearing loss. In November 2000, the RO received an April 2000 "To Whom It May Concern" letter from Dr. Steckowych stating that he was enclosing a tinnitus article at the urging of the appellant in support of his diagnosis of tinnitus having been caused by some specific episodes of difficulty equalizing while flying aircraft in the Navy. The article is dated in March 2000 from the American Tinnitus Association and states that barotrauma is one of the most interesting and unusual causes for tinnitus. On file is a January 2001 "To whom it may concern" letter from a private audiologist stating that considering the appellant's examination, past medical records that were reviewed, and accounts of military service, his hearing loss and tinnitus were, at least in part, a direct result of his military service and barotraumas. He said the appellant's hearing loss was progressive in nature. In a February 2002 rating decision, the RO denied reopening the claim of entitlement to service connection for hearing loss. William R. Reisacher, M.D., stated in January 2003 that otosclerosis was one component of the appellant's hearing difficulties, but it was very possible that barotrauma as well as noise exposure in service could have exacerbated the hearing loss and tinnitus. He said that the surgery could also have had an impact. In February 2003, the appellant indicated that in light of VA's finding that his hearing loss and tinnitus were due to otosclerosis, he was claiming that they were aggravated by conditions of his active duty for training. A VA examiner in December 2003 diagnosed the appellant as having mild to severe sensorineural hearing loss in the right ear and profound sensorineural hearing loss in the left ear. He said that based on testing that day and the appellant's VA medical records and statements, it is as likely as not that the appellant's hearing loss and tinnitus are related to his military service. The VA audiologist opined that the Appellant's hearing loss and tinnitus are at least as likely as not related to the military noise the appellant reported being exposed to while servicing airplanes. In an April 2004 rating decision, the RO denied reopening the claim of entitlement to service connection for hearing loss. A private audiologist, M. Cohen, of Arden Hills Speech and Hearing, opined in a November 2004 examination report that based on the description of the appellant's symptoms and the height (up to 10,000 feet) that he achieved while on a plane, it appeared evident that he experienced barotrauma on at least the left side. He said that the appellant should be entitled to obtain service connection and compensation for his hearing loss and tinnitus. He considered the appellant's reported history of noise exposure in service as well as plugged ear sensation and bleeding on an airplane descent in service. Dr. Reisacher reported in January 2002 that the appellant had ringing in his ears with a sensorineural hearing loss in both ears which apparently was caused according to the appellant by barotraumas while in service. He said there was a "reasonable possibility" that the appellant's ringing was caused by injury or disease which began or was made worse by service. In December 2002, Dr. Reisacher reported that the appellant described a history of noise exposure and barotraumas in the Navy from the late 1940s to the 1960s and had been followed for the past three years for hearing loss and tinnitus. He opined that it was more likely than not due to his military exposure. He similarly stated in September 2003 that the appellant has been experiencing ongoing bilateral tinnitus and progressive hearing loss following noise exposure and barotraumas in the Navy in 1955. In January 2005, the appellant filed an application to reopen the claim of entitlement to service connection for bilateral hearing loss and tinnitus. He included an October 2004 statement from his brother who asserted that the appellant did not have hearing problems prior to the Naval Reserve and that his problems began after a flight with the reserves. He said none of the appellant's four siblings have hearing problems. The appellant's friends, F.S., and C.S., submitted similar statements in October 2004. Dr. Reisacher reported in January 2006 that the appellant suffered from hearing loss and tinnitus secondary to otosclerosis, barotraumas and noise exposure which came from his military exposure on airplanes where no earplugs were available. A VA outpatient audiology record in September 2006 shows complaints of tinnitus and hearing difficulty, even with a hearing aid. A hearing instrument specialist, J.C.H., reported in September 2006 that the appellant's hearing loss was noise induced and certainly may have come from his military experience. V. Felman, M.D., of Hudson Valley Ear, Nose and Throat reported in June 2007 that the appellant was a patient of her practice and suffers from hearing loss and tinnitus secondary to sclerosis, barotraumas and noise exposure which came from military exposure on airplanes with no earplugs. A VA outpatient audiology record in November 2007 shows the appellant's complaint that his tinnitus was very upsetting. A VA audiologist in December 2007 relayed the appellant's report that his hearing loss started in service when a plane he was flying in landed and he had blood coming out of his left ear and both ears felt plugged. She also relayed the appellant's report of bilateral ringing and hissing tinnitus, worse in the left ear for many years. Dr. Felman reported in January and June 2008 that the appellant was a patient of her practice and suffers from hearing loss and tinnitus secondary to otosclerosis, barotraumas and noise exposure which came from military exposure on airplanes with no earplugs. In a March 2008 rating decision, the RO denied reopening the claims of entitlement to service connection for hearing loss and tinnitus. Private audiologist, M. Cohen, of Arden Hills Speech and Hearing relayed in April 2008 reported that the denial of the appellant's claim for hearing loss and tinnitus was "an injustice that flies in the face of our understanding of auditory pathophysiology. He said that if one acknowledges that flying in unpressurized cabins at 10,000 feet can be associated with barotraumas, then the appellant's claim was not unrealistic. He said there certainly was reasonable doubt in which to view the appellant's statement with "innate veracity". He also said that based on available audiological studies, it is impossible to determine whether there was or was not a conductive deafness of any type. He indicated that the appellant's claim has been denied based on unsubstantiated statements of record to include that he swam in polluted water in service prior to flying in aircraft and had progressive hearing loss of the otosclerotic, conductive type. Dr. Felman again reported in January 2009 that the appellant was a patient of her practice and suffers from hearing loss and tinnitus secondary to otosclerosis, barotraumas and noise exposure which came from military exposure on airplanes with no earplugs. In July 2013, a VHA opinion was obtained from an examiner of the VA medical center in West Palm Beach, Florida. The examiner noted that the appellant had had intermittent episodes of aerotitis or barotitis, both while on Reserve duty status and as a civilian. He described this condition as "self-limited", and noted that it was a very common process that can result in temporary hearing loss. He said that this typically does not cause permanent hearing loss and opined that it was not the cause of permanent or progressive hearing loss in the appellant. He went on to explain that aerotitis or barotitis results in pressure and/or fluid and a buildup in the middle ear space, which typically clears on its own or with conservative treatment with a Valsalva maneuver or various medical regimens. He said this temporary loss can last anywhere from a few minutes to several months. He also reported that in November 1956, as a civilian who had left the military earlier in that year and was no longer on reserve status, he was noted to have bilateral conductive hearing loss. He said the following year, he was noted to have progressive bilateral conductive hearing loss and associated findings, which were consistent with bilateral otosclerosis. He reported that the appellant's permanent and progressive hearing loss was due to otosclerosis, which he said was completely unrelated to his aerotitis and barotitis and not related to his military service. The examiner concluded by opining that the appellant's hearing loss in either ear and/or tinnitus are very unlikely to be related to his incidents or aerotitis while on active duty for training in the Naval Reserves. He indicated that there was less than 50 percent degree of probability that his hearing loss is related to his military service. Discussion The current claim was initiated in April 2007. Evidence received since the last final decision in August 2005 includes both new and material evidence and the requirements to reopen the claim have been met. In this regard, since August 2005 the appellant has submitted competent evidence establishing a likely relationship between incidents of his active duty for training and his hearing loss and tinnitus. Namely, numerous opinions have been received by private ENT physicians and audiologists who at least, in part, relate the appellant's present hearing loss and tinnitus to his barotraumas which occurred during periods of active duty for training in August 1955 and August 1956. As such, the claim must be reopened and reviewed on the merits. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. D. Entitlement to Service Connection for Bilateral Hearing Loss and Tinnitus As one physician reported in January 1993, the appellant has a long and convoluted audiological history which he dates back to a period of active duty for training in August 1955. In this regard, the appellant reports that he fell asleep on an upressurized flight 5000 to 7000 feet up and awoke on the descent at 500 to 1000 feet. He said he felt a sharp pain in his ears and felt deaf. He said further that one to two months later he noticed whining noises in the left ear and that his hearing never returned to its original level. He reported that the same thing occurred on a flight in August 1956. See December 1962 record from Morris Brooks, M.D. He has also indicated that he noticed a bloody discharge from his left ear following the August 1955 incident. Medical records show that the appellant sought medical treatment for hearing loss in August 1956 with Dr. Karutz at which time he reported difficulty hearing after flying. An audiogram in September 1956 revealed a severe conductive hearing loss, and Dr. Karutz's impression at that time was bilateral aero-titis. He also gave an impression at that time that the appellant had catarrahal otitis media, bilateral, after flying. In addition, the appellant was found to have otosclerosis which is first noted by a military examiner (an otolaryngologist) in January 1957. The examiner noted that audiometric studies revealed a bilateral conductive deafness typical of otosclerosis. He went on to find that due to a negative otolaryngology exam and patent Eustachian tubes by the Toynbee test, the appellant's hearing difficulties were not caused by aero-titis. He changed the appellant's PULHES at that time to H-4. In light of the facts outlined above, the Board concedes that the appellant. experienced episodes of aerotitis while on flights during periods of active duty for training in August 1955 and August 1956. The Board further finds that the appellant's otosclerosis was not incurred during a period of active duty for training or inactive duty for training. Thus, the question comes down to whether the appellant's currently claimed conditions of bilateral hearing loss and/or tinnitus are related, at least in part, to a period of active duty for training/inactive duty for training. There is both favorable and unfavorable evidence addressing this question. The favorable evidence consists of a multitude of opinions rendered by private ENT physicians and audiologists who at least, in part, relate the appellant's bilateral hearing loss and tinnitus to his episodes of aerotitis/barotraumas in August 1955 and August 1956. More specifically, they opined that these conditions are secondary to otosclerosis, barotraumas and noise exposure which came from military exposure on airplanes with no earplugs. These opinions include an opinion by audiologist, M. Cohen of Arden Hills Speech, who related in April 2008 that certainly flying in unpressurized cabins at 10,000 feet will certainly result in barotraumas which will cause hearing loss and tinnitus. There is also a January 2001 letter from a private audiologist who said that considering the appellant's examination, past medical records that were reviewed, and accounts of military service, his hearing loss and tinnitus were, at least in part, a direct result of his military service and barotraumas. In December 2002, Dr. Reisacher opined that it was more likely than not that the appellant's hearing loss and tinnitus were due to his military exposure which he said included noise exposure and barotraumas. The negative evidence consists of a VHA opinion obtained in July 2012 negating a causal relationship between the appellant's present hearing loss and tinnitus and service. In this regard, the examiner reported that the appellant's permanent and progressive hearing loss was due to otosclerosis, which he said was completely unrelated to his aerotitis and barotitis and not related to his military service. He explained that aerotitis or barotitis was a very common process that can result in temporary hearing loss and typically does not cause permanent hearing loss. He went on to find that it was not the cause of permanent or progressive hearing loss in the appellant. He concluded by opining that the appellant's hearing loss in either ear and/or tinnitus was very unlikely to be related to his incidents of aerotitis while on active duty for training in the Naval Reserves. With respect to the conflicting non-speculative medical opinions outlined above, each opinion was provided by a qualified and informed physician or audiologist. In short, the Board finds that both the positive and negative evidence is of approximately equal evidentiary weight. In these circumstances, the reasonable doubt created by this approximate balance of positive and negative evidence must be resolved in favor of the appellant. 38 U.S.C.A. § 5107(b). In conclusion, the evidence is in relative equipoise with respect to the question of a nexus between the appellant's bilateral hearing loss and tinnitus and service. 38 C.F.R. § 3.303(d). Resolving reasonable doubt in the appellant's favor, the claims are granted. 38 U.S.C.A. § 5107(b). ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for a back disability is denied. New and material evidence having been received, the application to reopen claims of entitlement to service connection for bilateral hearing loss and tinnitus are reopened. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs