Citation Nr: 1800049 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 13-24 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. By a June 2006 rating decision, the RO denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus; he was advised of the RO's decision, and of his appellate rights. 2. The Veteran appealed the decision to the Board and the Board confirmed the denials for the claims of service connection for bilateral hearing loss and tinnitus in a November 2008 decision. 3. The Veteran did not initiate an appeal of the Board's decision. 4. Additional evidence received since the Board's November 2008 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claims for service connection for bilateral hearing loss and tinnitus, and raises a reasonable possibility of substantiating the claims. 5. The evidence is at least in relative equipoise as to whether bilateral hearing loss and tinnitus were incurred in service. CONCLUSIONS OF LAW 1. The Board's November 2008 decision denying service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7104(b) (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2008). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 5108 (West 2002); 38 C.F.R. §§ 3.303, 3.156 (2008). 3. New and material evidence has been received to reopen the Veteran's claim for service connection for tinnitus. 38 U.S.C. §§ 1110, 5108 (West 2002); 38 C.F.R. §§ 3.303, 3.156 (2008). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. In the present case, the RO, by a decision entered in June 2006, denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus on grounds that the Veteran's conditions of hearing loss and tinnitus were not shown to be etiologically related to service. The RO notified the Veteran of its decision, and of his appellate rights, and he appealed the decision to the Board. In a November 2008 decision, the Board denied the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus because the conditions were not shown to be incurred in or aggravated by service. The Veteran did not initiate an appeal of the Board's November 2008 decision. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2013); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). For claims to reopen filed on or after August 29, 2001-such as the Veteran's-evidence is considered "new" if it was not previously submitted to agency decision makers. "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 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) (2017). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeal for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a "reasonable possibility of substantiating the claim" should be considered a component of what constitutes new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. If the new evidence would raise a reasonable possibility of substantiating the claim when considered with the old evidence, it triggers the Secretary's duty to assist by providing a medical opinion. Here, the evidence received since the time of the Board's November 2008 rating decision includes a VA audiological evaluation from January 2010 which produced the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 40 55 50 60 70 Left Ear 35 55 60 65 80 Pure tone Threshold Average of 1000 Hz - 4000 Hz Right Ear 58.75 Left Ear 65 Speech Recognition Right Ear 80% Left Ear 80% Although the VA examiner's opinion is not of record, according to the July 2013 Statement of the Case (SOC), the substance of the opinion was that the examiner could not resolve the issue of hearing loss without resort to mere speculation. The VA examiner noted that the Veteran's hearing was normal at separation; the frequencies 3 kHz and 6 kHz were not tested. Inner ear damage due to noise exposure typically begins in the high frequencies, often at 6 kHz. The examiner added that a 1991 audio document shows significant bilateral high frequency hearing loss and the doctor commented that damage from prolonged and repetitive exposure to noise should be considered, and that the 1991 audio was similar to a 1988 audio. However, since there is no objective evidence that the hearing loss began in service, and there has been significant progression of hearing loss since 1991, the examiner stated that he cannot without speculation state whether the Veteran's hearing loss is due to military noise exposure. Regarding the Veteran's tinnitus, the VA examiner noted that the Veteran could not provide a date of onset, and his description of tinnitus is not typical of tinnitus due to noise exposure, in that he stated that it is occasional, and occurs after wearing headphones for his TV, so it is less likely due to military noise exposure. In his February 2017 Board hearing, the Veteran testified that he had not noticed his hearing loss until 20 years after service when he was diagnosed because he had high frequency hearing loss. The Veteran's wife testified that she noticed problems with the Veteran's hearing since 1968 when she met him. The Veteran also submitted a private audiological examination from April 2017 which produced the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 65 65 70 70 75 Left Ear 65 70 70 80 90 Pure tone Threshold Average of 1000 Hz - 4000 Hz Right Ear 70 Left Ear 77.5 Speech Recognition Right Ear 80% Left Ear 80% The private examiner recited the Veteran's noise exposure during military service while serving as a rocket launcher gunner, helicopter door gunner, and paratrooper. The private examiner noted that the Veteran has severe hearing loss and constant tinnitus bilaterally. He opined that it is more likely than not that the Veteran's hearing loss and tinnitus result from exposure to hazardous noise during military service, especially given the level and duration of noise exposure in the military and the absence of noise exposure during civilian life. The evidence noted above was not before adjudicators when the Veteran's claims were last denied in November 2008, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to unestablished facts necessary to substantiate the claim for service connection for bilateral hearing loss and tinnitus, and raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened. Turning to the merits of the Veteran's claim, the Board finds, first, that the Veteran has bilateral hearing loss and tinnitus. The January 2010 VA examination and April 2017 private examinations both show that the Veteran has bilateral hearing loss for VA purposes. Additionally, the April 2017 VA examiner noted that the Veteran has tinnitus bilaterally. The Board also acknowledges that noise exposure in service has been conceded by the VA due to the Veteran's MOS in infantry while in service. Finally, the evidence establishes a link between the current disability and service. The private audiological examination from April 2017 notes that the Veteran's bilateral hearing loss and tinnitus are more likely than not due to the Veteran's exposure to hazardous noise during military service. Although the January 2010 VA examiner was not able to provide a nexus opinion regarding the Veteran's hearing loss and provided a negative nexus opinion regarding the Veteran's tinnitus, the Board finds that the evidence, at a minimum, gives rise to reasonable doubt on the matter. 38 U.S.C. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017). It light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for bilateral hearing loss and tinnitus have been met. (CONTINUED ON NEXT PAGE) ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for bilateral hearing loss is reopened. As new and material evidence has been received, the previously denied claim of entitlement to service connection for tinnitus is reopened. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs