Citation Nr: 1504259 Decision Date: 01/29/15 Archive Date: 02/09/15 DOCKET NO. 12-35 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from May 1966 to March 1970. This case comes to the Board of Veterans' Appeals (Board) from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In July 2014, the Veteran testified at a Board hearing at the RO. FINDINGS OF FACT 1. An August 2007 rating decision denied service connection for bilateral hearing loss. The Veteran was notified of the decision and of his appellate rights, but did not initiate an appeal of that issue. 2. The evidence received since the August 2007 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's bilateral hearing loss is related to active service. 4. The Veteran's tinnitus is related to active service. CONCLUSIONS OF LAW 1. The August 2007 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2014). 2. New and material evidence has been received since the August 2007 rating decision to reopen the previously denied claim for service connection for bilateral hearing loss. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 C.F.R. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2014). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c), (d) (West 2014). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014). New evidence is evidence that has not previously been reviewed by VA adjudicators. 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 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) (2014). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The claim for service connection for bilateral hearing loss was originally denied in a July 2007 rating decision because there was no evidence of hearing loss in either ear in service or evidence of a link between the disability and service. An August 2007 rating decision continued to deny the claim noting that a VA examiner opined that the hearing loss was not related to service. The Veteran was notified of the decision and of his appellate rights, but did not initiate an appeal of that issue. There is no indication that new and material evidence was received within one year following that decision that was pertinent to the issue on appeal. 38 C.F.R. § 3.156(b) (2014). Thus, the decision became final. 38 U.S.C.A. § 7105 (West 2014). The pertinent evidence received since the August 2007 denial consists of a private medical record containing a physician's opinion that the Veteran's hearing loss was caused in part by in-service noise exposure. Presuming the credibility of the evidence for the purpose of determining whether the evidence is material, the record now suggests that the Veteran's bilateral hearing loss may be related to active service. The evidence is new, not cumulative, and relates to an unestablished fact necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2014). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2014). 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 (1993). In this case, the Veteran claims he has bilateral hearing loss and tinnitus due to noise exposure while serving as an aircraft mechanic in the Air Force. The Veteran's separation form shows he served as an aircraft maintenance specialist and, thus, in-service noise exposure is conceded. However, his service medical records do not show hearing loss in either ear to an extent recognized as a disability for VA purposes. Post-service private medical records do not show hearing loss in either ear to an extent recognized as a disability for VA purposes until December 2004, when audiometric findings indicated hearing loss in the right ear. During an April 2007 VA examination, the Veteran reported in-service noise exposure to aircraft as a flight line supervisor and post-service noise exposure as an engineer in a cabin for a railroad company with some use of hearing protection. In a June 2007 addendum, the examiner opined that it was not likely that the Veteran's bilateral hearing loss was a result of in-service noise exposure as his hearing was normal at discharge. A March 2011 statement from the Veteran's spouse indicates that he had hearing loss since they met in 1976. A May 2011 VA examination report shows the examiner's statement that it is not possible to determine the etiology of tinnitus using current clinical technologies and thus etiology was typically inferred from patient history. The examiner then stated that, as the Veteran reported that his tinnitus began about 10 years ago, the tinnitus was not a result of in-service noise exposure. An April 2011 private medical record notes the Veteran's history of serving as an aircraft mechanic from 1966 to 1970, a diagnosis of noise-induced hearing loss, and an opinion that it is more probable than not that a portion of the Veteran's hearing loss was caused by in-service noise exposure. In the July 2011 notice of disagreement, the Veteran stated he had tinnitus for as long as he could remember, not just 10 years. An August 2011 VA medical opinion shows that, considering the Veteran's normal hearing at discharge, it was not likely his hearing loss was a result of in-service noise exposure, but rather was due to post-service occupational noise exposure. During the July 2014 Board hearing, the Veteran testified that while he worked with a railroad company for 40 years, five of those years were as a clerk in an office and the remaining years were as an engineer in a cabin with minimal noise exposure and the use of hearing protection. He also testified that he first noticed hearing loss and tinnitus at around the same time, in the 1970s. Considering the evidence, the Board finds that there is evidence both for and against the Veteran's claim. Two VA examiners opined that the Veteran's bilateral hearing loss was not a result of in-service noise exposure. However, both examiners relied on the lack of in-service hearing loss at discharge. On the other hand, a private physician opined that a portion of the Veteran's hearing loss was caused by in-service noise exposure. While the physician did not specifically address the Veteran's history of post-service occupational noise exposure, that the physician attributed only a portion of the hearing loss to service indicates consideration of post-service noise exposure. Moreover, the Veteran testified there was minimal noise exposure at his job with the railroad and he used hearing protection as needed. Further, the Veteran's wife indicated that he had hearing loss since as early as 1976. Her statements, and those of the Veteran, are found to be credible. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that bilateral hearing loss is related to active service. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, service connection for bilateral hearing loss is warranted. Turning to tinnitus, the Board notes the May 2011 VA examiner's statement that the etiology of tinnitus is typically inferred from patient history. The examiner indicated that the Veteran dated the onset of tinnitus to about 10 years ago, then opined that the tinnitus was not a result of in-service noise exposure. However, the Board notes that the Veteran stated on his November 2010 claim that he had tinnitus since leaving the Air Force, in 1970, and he later testified he first noticed tinnitus in the 1970s, at the same time he noticed hearing loss. As ringing of the ears is observable to the layperson, the Veteran's statements regarding time of onset are competent evidence. Layno v. Brown, 6 Vet. App. 465 (1994). In that regard, his statements indicate that the tinnitus began after discharge from service. When asked at the hearing whether he had tinnitus in service while working on the aircraft, the Veteran testified that he did not notice tinnitus at that time, but indicated that the aircraft noise was extremely loud and he could not hear anything. However, the Veteran has related the onset to tinnitus to shortly after service and his testimony is found to be credible. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that tinnitus is related to active service. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs