Citation Nr: 1340159 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 13-02 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from July 1951 to July 1953. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In September 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A September 2003 rating decision denied the appellant's claim of entitlement to service connection for tinnitus; no appeal was taken from that determination and it became final. 2. A March 2004 rating decision denied the appellant's claim for entitlement to service connection for bilateral hearing loss; no appeal was taken from that determination and it became final. 3. Evidence submitted subsequent to the September 2003 and March 2004 rating decisions is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. 4. The appellant has bilateral hearing loss as defined by 38 C.F.R § 3.385. He also has tinnitus. 5. Resolving reasonable doubt in the appellant's favor, the evidence of record, particularly the July 2010 private physician's opinion, demonstrates that the appellant's bilateral hearing loss and tinnitus are at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The September 2003 and March 2004 rating decisions are final as to the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. New and material evidence has been received since the September 2003 and March 2004 to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 4. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 5. Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The appellant's claims have been granted, as discussed below. As such, the Board finds that any error related to the Veterans Claims Assistance Action (VCAA) on that petition to reopen is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Accordingly, the Board may proceed with a decision on the appellant's claims. II. New and Material Evidence The appellant is seeking to reopen his claims for entitlement to service connection for bilateral hearing loss and tinnitus. For the reasons that follow, the Board finds that the claims should be reopened. In a September 2003 rating decision, the RO denied the appellant's claims for service connection for tinnitus and bilateral hearing loss because there was no nexus between the conditions and service. The appellant did not appeal the denial of his claim for entitlement to service connection for tinnitus and it became final. 38 U.S.C.A. § 7105. In October 2003, the appellant submitted a new statement and evidence which the RO construed as a claim to reopen his claim for entitlement to service connection for bilateral hearing loss. In a March 2004 rating decision, the RO confirmed and continued the denial of service connection for bilateral hearing loss. The appellant did not appeal the decision and it became final. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). In May 2010, the appellant requested that VA reopen his claims for bilateral hearing loss and tinnitus. The appellant submitted a June 2010 private audiological examination report indicating that he had a diagnosis of "Hearing loss with Tinnitus." The appellant also submitted a July 2010 medical report from H.B.B., a family physician. In the report, Dr. H.B.B. noted that the appellant was sent to see a doctor at Arkansas Otolaryngology and the report is enclosed. Dr. H.B.B. stated that the appellant " . . . suffers from sensorineural hearing loss and this diagnosis is consistent with the type of percussion injury sustained while in the military." He stated that "It is my conclusion, to a reasonable degree of medical certainty, that [the appellant] suffered hearing loss as a result of his military service as crew chief in [the] artillery exposed to 90 mm guns." The Board finds that the June 2010 private audiological examination report and July 2010 medical opinion from Dr. H.B.B. are new and material evidence. The evidence had not previously been submitted to agency decision-makers. Thus, it is new. Additionally, the evidence is material as it relates to an unestablished fact necessary to substantiate the claim, specifically that there is a nexus between the appellant's bilateral hearing loss and tinnitus disabilities and his exposure to loud noise in service. The private opinion is not cumulative or redundant of the evidence of record at the time of the last final prior denial, and it raises a reasonable possibility of substantiating the claims. In the July 2010 opinion, Dr. H.B.B refers to the appellant's "hearing loss" and enclosures, which include the June 2010 private treatment record indicating that the appellant's full diagnosis is "Hearing loss with tinnitus." Thus, the Board finds that the evidence is material to both of the appellant's claims to reopen. As new and material evidence has been received, the claims for entitlement to service connection for bilateral hearing loss and tinnitus must be reopened. III. Service Connection As the claims for entitlement to service connection for bilateral hearing loss and tinnitus have been reopened, the Board may proceed to evaluate the merits of the claim on the basis of all the evidence of record. The Board finds that service connection is warranted for both bilateral hearing loss and tinnitus The appellant has current diagnoses of bilateral hearing loss and tinnitus. See Aug 2010 VA examination report. 38 C.F.R. § 3.385 (2013). Therefore, the Board finds that the first element of a service connection claim, that of a current disability, has been met for both his hearing loss and tinnitus claims. The Board also finds the evidence demonstrates the appellant was exposed to loud noise in service. A September 1955 letter order reflects that the appellant's military occupational specialty was antiaircraft artillery gun crewman. Based on this history, the Board finds the appellant was likely exposed to loud noise in-service. Most of the appellant's service treatment records are missing. A July 1953 separation examination report indicates the appellant had whisper voice testing results of 15/15 in both ears. The appellant has asserted that he has had symptoms of hearing loss and tinnitus since service. The Board finds that the July 2010 private opinion from Dr. H.B.B. is probative. Dr. H.B.B. provided a rationale for the opinion and specifically stated that "to a reasonable degree of medical certainty," the appellant suffered hearing loss as a result of his military service as crew chief in the artillery exposed to 90 mm guns. In an August 2003 VA examination report, the VA examiner found that the appellant's hearing loss was less likely than not related to military service. The VA examiner did not review the claims file and based the opinion on the fact that the appellant did not seek help for the condition for 30 years following military service. As the appellant is competent to report symptoms of hearing loss and tinnitus, the Board finds that the August 2003 VA opinion is inadequate and has little probative value. An August 2010 VA examiner found that she could not resolve this issue without resort to mere speculation as there were no service era audiograms or complaints of tinnitus in any of the medical records. As the VA examiner did not provide an opinion, the August 2010 VA examination report has no probative value. The Board finds that service connection for bilateral hearing loss and tinnitus is warranted. The evidence demonstrates the appellant has current diagnoses of hearing loss and tinnitus and exposed to loud noise in service. There is also a probative nexus opinion linking the appellant's hearing problems to his exposure to loud noise in service. Although the appellant's separation examination report does not indicate that the appellant had hearing loss, the discharge hearing screening was limited to a whisper voice test. Whispered voice tests can be inaccurate and insensitive to the types of hearing loss most commonly associated with noise exposure. See VA Training Letter 10-02. As discussed above, the July 2010 private opinion is more probative than the VA examination reports of record. Additionally, the appellant has consistently reported having symptoms of tinnitus since service. As a lay person, he is competent to report ringing in his ears. Giving the appellant the benefit of the doubt, the Board finds that a preponderance of the evidence supports a grant of service connection for bilateral hearing loss and tinnitus. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs