Citation Nr: 1801405 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-36 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to November 1967 in the United States Army. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2017, the Board remanded the case to schedule the Veteran for a Board hearing. In November 2017, the Veteran and his wife testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the November 2017 Board hearing, the undersigned agreed to leave the record open for 60 days to allow the Veteran an opportunity to submit additional evidence. Although this 60-day time period has not yet expired, a review of the record indicates that there is sufficient evidence to grant the Veteran's claims. Therefore, there is no prejudice to the Veteran in the Board's issuance of this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In a November 2007 rating decision, the RO denied the Veteran's claims of service connection for bilateral hearing loss and tinnitus. The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence associated with the claims file since the November 2007 rating 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. 3. Resolving reasonable doubt in his favor, the Veteran's bilateral hearing loss and tinnitus are etiologically related to acoustic trauma incurred during his military service. CONCLUSIONS OF LAW 1. The November 2007 rating decision that denied claims of service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening a previously denied claim of service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for reopening a previously denied claim of service connection for tinnitus have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that new and material evidence has been received to reopen the claims of service connection for bilateral hearing loss and tinnitus. The claims were previously denied in a November 2007 rating decision because the evidence did not show a nexus between the Veteran's military service and his hearing loss/tinnitus. In November 2011, the Veteran submitted a medical opinion from a private audiologist that indicates a link between the Veteran's military service and his hearing loss/tinnitus. The Board finds this evidence new and material. Therefore, the claims are reopened and will be decided on the merits. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017). For the purposes of applying the laws 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. The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). VA shall consider all information and lay and medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hearing loss and tinnitus are etiologically related to his military service. Although there is evidence against the claim (i.e., the October 2007 VA examination), the hearing testimony from the Veteran and his wife, along with the medical opinion from a private audiologist indicate that the Veteran has had ongoing problems with hearing loss and ringing in his ears since his military service and that these problems are related to his acoustic trauma sustained therein. The evidence establishes that the Veteran has tinnitus and bilateral hearing loss, which meets the criteria set forth in 38 C.F.R. § 3.385. The evidence also indicates that the Veteran was exposed to acoustic trauma during his military service. During the Board hearing, he testified that he exposed to heavy artillery fire during service and has had limited noise exposure during civilian life. Thus, the Veteran has met the first and second elements of service, i.e., a current diagnosis and an inservice injury, disease, or event. The remaining and dispositive question in this case is whether the Veteran's hearing loss and tinnitus are related to the acoustic trauma he sustained during military service. His service treatment records are unremarkable for any complaints, treatment, or diagnoses related to hearing loss and tinnitus. At his November 1967 separation examination, his hearing was normal and he denied having ear trouble and hearing loss. The Board notes, however, that the absence of a hearing loss disability during service is not always fatal to a claim for service connection and that a medically sound basis upon which to attribute the post-service findings to the injury in service may sufficient to grant the claim. See Hensley. At the Board hearing, the Veteran and his wife testified that he has had hearing loss and tinnitus since service and that it has progressively worsened over time. He and his wife were married a few years before he entered military service, and she noted that he did not have any hearing problems prior to service. In November 2011, a private audiologist opined that the Veteran's hearing loss and tinnitus were more likely than not related to his military noise exposure and that it may have worsened during civilian life. She indicated that her opinion was based on case history, configuration of hearing loss, and the reported onset of tinnitus. She considered the Veteran's normal findings at his separation examination and cited the Hensley case. The Board finds the November 2011 medical opinion competent and significantly probative evidence weighing in favor of the Veteran's claims. On this record, the Board finds the lay statements along with the medical evidence indicate that the Veteran's bilateral hearing loss and tinnitus are at least as likely as not related to his military service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for bilateral hearing loss and tinnitus is warranted. See Gilbert, 1 Vet.App. at 55. ORDER New and material evidence having been submitted, the claim of service connection for bilateral hearing loss is reopened. New and material evidence having been submitted, the claim of service connection for tinnitus is reopened. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs