Citation Nr: 1800680 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-02 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan 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 Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from September 1959 to September 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appeal has since been transferred to the RO in Detroit, Michigan. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. §20.900(c) (2017). 38 U.S.C. §7107(a)(2) (2012). The issue of whether there was clear and unmistakable error (CUE) in the June 2005 rating decision denying service connection for tinnitus has been raised by the record in an August 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. In an unappealed June 2005 RO decision, service connection for bilateral hearing loss was denied. 2. New evidence received since the June 2005 rating decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. In an unappealed June 2005 RO decision, service connection for tinnitus was denied. 4. New evidence received since the June 2005 rating decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim of service connection for tinnitus. 5. Bilateral hearing loss is related to service. 6. Tinnitus is related to service. CONCLUSIONS OF LAW 1. The unappealed June 2005rating decision which denied service connection for bilateral hearing loss is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156 (a), 3.104(a), 20.302, 20.1103 (2017). 2. Evidence received since the June 2005 RO decision that denied entitlement to service connection for bilateral hearing loss; the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). 3. The unappealed June 2005 rating decision which denied service connection for tinnitus is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156 (a), 3.104(a), 20.302, 20.1103 (2017). 4. Evidence received since the June 2005 RO decision that denied entitlement to service connection for tinnitus; the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). 5. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 6. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, enlarged VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the decisions below are entirely favorable to the Veteran, no further action is required to comply with the VCAA. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). The threshold to reopen a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA is required to review for its newness and materiality only the evidence submitted by the claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. See Evans v. Brown, 9 Vet. App 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for hearing loss and tinnitus was denied in a June 2005 rating decision. The Veteran did not appeal the June 2005 RO decision or submit material evidence within the year following notification of that decision. See 38 C.F.R. § 3.156 (b). Thus, the decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). In its January 2015 rating decision, the RO reopened the previously denied claim of service connection for hearing loss and tinnitus and considered the claim on the merits. The fact that the RO may have determined that new and material evidence was presented, and reopened the claim on that basis, is not binding on the Board's determination of the question of whether new and material evidence has been submitted. Barnett v. Brown, 8 Vet. App. 1 (1995). The Board is required to determine whether new and material evidence has been presented before it can reopen a claim and readjudicate service connection on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). At the time of the prior June 2005 rating decision, the record included service treatment records and statements from the Veteran in support of his claim. Service connection was denied based on findings that neither a present disability nor a nexus between a disability and service were shown. The Veteran did not appeal the June 2005 RO decision or submit material evidence within the year following notification of that decision. See 38 C.F.R. § 3.156 (b). Thus, the decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). Evidence associated with the claims file since the RO's June 2005 denial includes additional treatment records, additional statements in support of the Veteran's claim a January 2015 VA examination report and the private medical opinion of licensed audiologist Dr. M.S.. When considered with previous evidence of record, the Board finds the evidence added to the record since the June 2005 rating decision raises a reasonable possibility of substantiating the claim for service connection for hearing loss and tinnitus. Specifically, the new evidence shows diagnoses for hearing loss and tinnitus. Further the new evidence speaks to the issue a medical relationship between the Veteran's service and those disabilities. As such, the evidence is new and material and the claims are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The reopened issues are considered in the analysis, below. Service Connection The Veteran contends that he has hearing loss and tinnitus which are due to in-service noise exposure. . To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). The Veteran's January 2015 VA examination and private February 2016 treatment records demonstrate that the Veteran has hearing loss in accordance with the standards under 38 C.F.R. § 3.385 and tinnitus may be reported by the Veteran as he is able to observe the symptoms of that disability. Thus a present hearing loss and tinnitus disability is shown. Further, service records demonstrate that the Veteran served as an aircraft mechanic on jet fighters, therefore in-service exposure to loud noise is conceded. Thus, the questions for the Board are whether the Veteran's demonstrated hearing loss and tinnitus are due to such noise exposure. Having weighed the evidence for and against the Veteran's claims, the Board finds that the evidence is in favor of the Veteran's claims. The pertinent evidence in favor of the Veteran's claims includes his February 2005 statement in which he described constant ringing in his ears and hearing loss which was worsening with age and his December 2015 substantive appeal in which he indicates that he experienced symptoms during service and thereafter. Additionally, the claims file includes a February 2016 report from audiologist Dr. M.S. in which Dr. M.S. concludes that based on the Veteran's case history information and audiometric findings, it is more likely than not that the Veteran's high frequency hearing loss and associated tinnitus were caused or aggravated by loud jet engine noise exposure while serving in the military. Weighing against the Veteran's claims is a July 2011 VA medical center treatment note in which the Veteran denies hearing loss and reported ringing in the ears bilaterally. Further, the Veteran was afforded a VA examination in January 2015 wherein the VA examiner concluded it was less likely than not that the Veteran's hearing loss or tinnitus was due to service because service treatment records did not demonstrate hearing loss which and because the Veteran reported the onset of his tinnitus ten years prior. The Board finds that the evidence in favor of the Veteran's claims outweighs the evidence against them. Initially, the Veteran is competent to report symptoms of tinnitus since service and such a report is sufficient evidence of a nexus between the current tinnitus and service. The Board finds such noise exposure is consistent with the Veteran's service and the Veteran's reports of ringing in the ears are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Of note, the Veteran denied having stated that the onset of his tinnitus was ten years prior at his VA examination and the Board finds this credible. Further, while the VA examiner found that the Veteran's hearing loss was not due to service because it was not shown therein, the Board notes that the absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Thus the findings of the January 2015 VA examiner are afforded less probative value. When considering the conclusion of Dr. M.S. as well as the Veteran's credible statements in support of his claim, the Board finds that the evidence in favor of the Veteran's claims outweigh the evidence against them. Resolving the benefit of the doubt in the Veteran's favor, the Board finds that competent, credible, and probative evidence establishes that hearing loss and tinnitus is etiologically related to the Veteran's active service. ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is reopened. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs