Citation Nr: 1754491 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-35 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This current matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2015, the Veteran withdrew his request for a Travel Board hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In an unappealed March 1981 rating decision, the RO denied service connection for bilateral hearing loss. 2. The additional evidence received since the March 1981 rating decision relates to a previously unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss. 3. The evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is causally or etiologically related to his service. 4. The evidence is at least in equipoise as to whether the Veteran's tinnitus is causally or etiologically secondary to his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The March 1981 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received since the last denial of service connection for bilateral hearing loss, and this claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 4. The criteria for service connection for tinnitus, as secondary to the service-connected bilateral hearing loss, are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). In light of the favorable determination to reopen the claim of entitlement to service connection for bilateral hearing loss and grant entitlement to service connection for bilateral hearing loss and tinnitus, VA's duties to notify and assist are deemed fully satisfied. There is no prejudice to the Veteran in proceeding to decide these issues. Claim to Reopen A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the RO ruled on the question of reopening, the Board must decide the matter on appeal, because reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In the March 1981 rating decision, the RO denied service connection for bilateral hearing loss on the basis that hearing loss was found many years after the Veteran's service and is not related to his active service or a period of Agent Orange exposure. The Veteran did not appeal this adverse determination, nor did he submit any additional evidence within a year following the decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that in determining whether a decision became final VA is required to determine whether any evidence received within one year of the decision is new and material and prevented the decision from becoming final under 38 C.F.R. § 3.159(b)). Thus, the previous rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The evidence added to the record since the March 1981 rating decision includes photographs and a statement that the Veteran submitted through his representative in October 2011. The Veteran explained that from April 1964 to July 1965 he was with the Field Artillery in Fort Benning, Georgia and noted that he was with the 2nd Infantry 37th Artillery Delta Battery. The photographs are dated in October 1964 and show the Veteran without ear protection next to guns that were fired. This evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss as it provides further elaboration of the Veteran's extensive exposure to acoustic trauma during service. Thus, this claim is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Bilateral sensorineural hearing loss (organic disease of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran's claim for service connection for hearing loss. Where there is evidence of acoustic trauma and sensorineural hearing loss, tinnitus is also considered a "chronic disease" under 38 C.F.R. § 3.309(a) for presumptive service connection purposes. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Service connection may also be granted for disability which is proximately due to, the result of, or otherwise aggravated by a service-connected disease or injury. 38 C.F.R. §3.310(a), (b). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Considering the claims for service connection for bilateral hearing loss and tinnitus, in light of the record and the governing legal authority, the Board finds that the evidence is at least in equipoise on the question of a nexus. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). First, the Veteran has diagnoses of tinnitus and bilateral sensorineural hearing loss. See September 2011 VA examination showing puretone thresholds for both ears were 60 dB at 3000 Hertz and diagnoses were tinnitus and sensorineural hearing loss in both ears. Second, the evidence of record indicates extensive in-service noise exposure. The Veteran has explained that from April 1964 to July 1965 he was with the 2nd Infantry 37th Artillery Delta Battery. See October 2011 statement and January 2013 notice of disagreement. He submitted photographs dated in October 1964 that show him without ear protection next to guns that were fired. The Veteran also states that during service in Vietnam he was assigned to an artillery battery and was exposed to howitzer fire. See September 2011 Report of General Information. His DD 214 and DD 215 show that he served in Vietnam, designated by the "USARV" abbreviation. Under 38 U.S.C.A. § 1154(a), due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by his service record and all the medical and lay evidence. Third, throughout the appeal period, the Veteran has essentially contended that he has experienced bilateral hearing loss since active service. See, e.g., June 2011 claim, September 2011 Report of General Information. These statements are competent, credible, and probative of the presence of in-service noise exposure and diminished hearing. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board finds that the Veteran's contentions are competent, credible, and probative of the presence of in-service noise exposure and diminished hearing during service. The Board acknowledges that, on VA examination in September 2011 the examiner opined that the Veteran's hearing loss is less likely as not caused by or a result of an event in service given that his preinduction and separation examinations showed normal hearing thresholds and that there was no significant shift between the two examinations. To the extent that the examiner's opinion is based on the Veteran's normal hearing during service, the opinion is of limited probative value as the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). To the extent that the examiner opined that presbycusis may also be contributing to the Veteran's current hearing loss, based on the evidence of record it is not possible to distinguish the effects of the nonservice-connected disorder from those of the service-connected disorder. Thus, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disorder. See Mittleider v. West, 11 Vet. App. 181 (1998). As for the Veteran's claim of service connection for tinnitus, tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. "High frequency tinnitus usually accompanies [noise-induced] hearing loss." The MERCK Manual, Section 7, Ch. 85, Inner Ear. See also Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran has a diagnosis of sensorineural bilateral hearing loss, and service connection for bilateral hearing loss is being granted herein based on acoustic trauma during service. On VA examination in September 2011, the examiner indicated that tinnitus became noticeable approximately ten years earlier. There appears to be a typographical error in the examiner's opinion regarding the etiology of tinnitus as the examiner stated that "(s)ince hearing loss is not related to service and tinnitus is secondary to service thus tinnitus is not related to service". The overall context of the opinion shows that the examiner is relating the Veteran's tinnitus to his bilateral hearing loss. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Thus, the evidence at least is in relative equipoise as to whether the Veteran's tinnitus is attributable to his period of active service or his bilateral hearing loss. Therefore, considering the totality of the evidence, the Board resolves all reasonable doubt in favor of the Veteran and grants service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the application to reopen the claim for service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus, as secondary to the service-connected bilateral hearing loss, is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs