Citation Nr: 1800621 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-24 213A ) 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 submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from November 1959 to November 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2017, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. At the November 2017 hearing, the undersigned granted a motion to advance the appeal on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In a May 2010 decision, the RO denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the final May 2010 decision includes statements of the Veteran and internet articles, VA and private treatment records, and a private nexus statement from the Veteran's physician, which relate to unestablished facts necessary to substantiate the matters of entitlement to service connection for bilateral hearing loss and tinnitus and, if presumed credible, raise a reasonable possibility of substantiating the claims. 3. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed bilateral hearing loss was incurred in his active military service. 4. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed tinnitus was incurred in his active military service. CONCLUSIONS OF LAW 1. The May 2010 rating decision denying the issues of entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. New and material evidence has been received to warrant reopening of the claims of service connection for bilateral hearing loss and tinnitus. 38 U.S.C. §§ 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. Resolving all doubt in the Veteran's favor, bilateral hearing loss was incurred in his active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. Resolving all doubt in the Veteran's favor, tinnitus was incurred in his active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claims to reopen In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105(c) (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as these, filed on or after August 29, 2001, 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 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a May 2010 decision, the RO denied the Veteran's original claims of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran did not perfect an appeal, and new and material evidence was not received within one year of the issuance of the decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Veteran now seeks to reopen his claims of service connection for bilateral hearing loss and tinnitus. As noted above, despite the finality of a prior adverse 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. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Therefore, as a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen the previously denied claims. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in May 2010. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156 warranting reopening of the claims of service connection for bilateral hearing loss and tinnitus. At the time of the last final denials, the Veteran contended that he suffered from bilateral hearing loss and tinnitus due to noise exposure during his military service. The Veteran reported the in-service onset of hearing loss and tinnitus after a landmine blew up during a training exercise. See, e.g., the VA examination dated May 2010. He also stated that he was exposed to artillery fire, weapons fire, and mortar fire during his basic and advanced infantry training. Id. In the May 2010 decision, the RO conceded the Veteran's in-service acoustic trauma as due to noise exposure while performing his military occupational specialty (MOS) of machine accounting specialist. The RO then determined that the evidence of record did not demonstrate that the diagnosed bilateral hearing loss and tinnitus were incurred in the Veteran's active military service. See the rating decision dated May 2010. The Veteran filed to reopen his service connection claim in February 2012. Without the need to discuss every piece of newly received evidence in detail, the Board finds that new and material evidence has been received regarding the request to reopen the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Namely, in a November 2017 statement, the Veteran's treating physician reported that the Veteran's bilateral hearing loss and tinnitus are as likely as not caused by or a result of his military service. Critically, this positive nexus statement from the Veteran's treating physician relates to the previously unestablished element of nexus as to the bilateral hearing loss and tinnitus claims. Accordingly, the standards under 3.156(a) have been met and the claims are reopened. See McLendon, 20 Vet. App. at 81; Shade, supra. II. Merits of Service Connection In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone or speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the Veteran asserts that he has bilateral hearing loss and tinnitus, which are due to in-service noise exposure. See, e.g., the November 2017 Board hearing transcript. As indicated above, the record demonstrates that the Veteran served on active duty from November 1959 to November 1962. He has asserted in-service noise exposure from a landmine explosion during training, as well as due to mortar and small weapons fire during his basic and advanced infantry training. See the VA examination dated May 2010. He has also contended that he was exposed to sustained machine noise while performing his MOS of machine accounting specialist. See the Veteran's claim to reopen dated February 2012. To this end, the Board observes that the Veteran's report of in-service noise exposure from machine noise has been conceded by the RO. See the rating decision dated May 2010. Moreover, the Veteran's assertions of in-service noise exposure are consistent with the evidence of record, which confirms his MOS. The Veteran was afforded a VA examination in May 2010, at which time the examiner confirmed diagnoses of tinnitus and bilateral hearing loss sufficient for VA compensation purposes. See 38 C.F.R. § 3.385 (2017). As to the question of nexus, the examiner concluded that the diagnosed bilateral hearing loss is not caused by or a result of in-service noise exposure. The examiner explained, "[s]hift was noted for the left ear in which the Veteran relates to the mine explosion during training; however, based on his SMR's, his hearing returned to normal after ear wax was removed from the ear." The examiner continued, "Veteran's separation exam was normal bilaterally, which does not support noise-induced hearing loss during service; therefore, it is my opinion that Veteran's hearing loss was not caused by or a result of in-service noise exposure." The examiner further opined, "[a]lthough Veteran currently has a high frequency sensorineural hearing loss, IOM (Institute of Medicine) concluded that based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss." Significantly, as to the diagnosed tinnitus, the May 2010 VA examiner determined that this disability is as least as likely as not caused by or a result of the Veteran's in-service noise exposure. The examiner explained, "[t]innitus due to noise exposure or acoustic trauma is known to have a noticeable onset immediately or soon following the incident and Veteran reported onset after mine explosion, therefore, it is my opinion that tinnitus is at least as likely as not caused by in-service noise exposure." In support of his claim, the Veteran recently submitted a November 2017 statement from his treating physician, who opined that the Veteran's diagnosed bilateral hearing loss and tinnitus are caused by or a result of his military service. The physician explained, "I have treated the Veteran . . . for about 13 years and reviewed the above records. It is my professional medical opinion that the Veteran's tinnitus and hearing loss [are] directly related to his time in the military." He continued, "[i]t is more likely than not related to his three years in a machine room with loud noise from machines and loud noise without any ear protection. [The Veteran] was also exposed to multiple explosions at close range causing damage to [his] ears resulting in tinnitus and hearing loss." In multiple statements, as well as in his November 2017 Board hearing testimony, the Veteran has contended that his bilateral hearing loss and tinnitus initially began during his military service and continued thereafter. He also submitted an internet article on noise-induced hearing loss in support of his claims. Critically, evidence of a current bilateral hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As noted above, in the November 2017 letter, the Veteran's treating physician provided a positive medical nexus opinion concerning the etiology of bilateral hearing loss and tinnitus. This opinion is supported by the evidence of the significant in-service noise exposure sustained by the Veteran during his active duty service. The Board has weighed the probative evidence of record, including the Veteran's competent and credible assertions concerning continuing hearing loss and tinnitus symptomatology, the May 2010 diagnoses of tinnitus and bilateral hearing loss sufficient for VA compensation purposes, the May 2010 VA examination report, and the November 2017 opinion from the Veteran's treating physician, and finds that the evidence is at least in equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the application to reopen the claim of service connection for bilateral hearing loss is granted. New and material evidence having been received, the application to reopen the claim of service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs