Citation Nr: 18143780 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-34 204 DATE: October 23, 2018 ORDER The application to reopen the claim for service connection for bilateral hearing loss is granted. The application to reopen the claim for service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In a March 2009 rating decision, the RO denied service connection for bilateral hearing loss. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received since the March 2009 rating decision is new and material and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. 3. In a March 2009 rating decision, the RO denied service connection for tinnitus. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 4. Evidence received since the March 2009 rating decision is new and material and raises a reasonable possibility of substantiating the claim of service connection for tinnitus. 5. The Veteran’s bilateral hearing loss is at least as likely as not related to his in-service acoustic trauma. 6. The Veteran’s tinnitus is caused by his service-connected hearing loss. CONCLUSIONS OF LAW 1. The March 2009 rating decision that denied the claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The additional evidence received since the March 2009 decision is new and material, and the claim of service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The March 2009 rating decision that denied the claim of entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 4. The additional evidence received since the March 2009 decision is new and material, and the claim of service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 6. The criteria for secondary service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1969 to March 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). In November 2016, the Veteran testified before the undersigned Veteran Law Judge; a transcript of the hearing is associated with the claims file. The Board apologizes for the lengthy time between the hearing and issuance of this decision, which appears to be due to the docket number of the case. See 38 U.S.C. § 7107(a) (providing that cases be heard in docket order unless advanced on the docket based on motion). New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). For the following reasons, new and material evidence has been received with regard to the claims for bilateral hearing loss and tinnitus. The Veteran’s original claims for service connection for bilateral hearing loss and tinnitus were denied because there was no evidence of current bilateral hearing loss and tinnitus, or a nexus between the Veteran’s disabilities and service. In a March 2009 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the March 2009 rating decision is final. See 38 U.S.C. § 7105(c); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the March 2009 rating decision included the Veteran’s service treatment records (STRs) and VA treatment records, reflecting no hearing loss or tinnitus. Relevant evidence received more than one year since the March 2009 rating decision includes an April 2016 VA examination report diagnosing bilateral hearing loss and tinnitus, and providing nexus opinions; as well as the Veteran’s testimony in November 2016 before the undersigned Veterans Law Judge addressing the onset and continuity of bilateral hearing loss and tinnitus. As this evidence relates to the basis for the prior denial, and could reasonably substantiate the claims were the claims to be reopened by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement, the evidence is new and material. Shade, 24 Vet. App. at 118. Thus, the Board finds that the additional evidence submitted since the March 2009 rating decision is new and material evidence that relates to the basis for the prior denials. Reopening of the claims for service connection for bilateral hearing loss and tinnitus is therefore warranted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a); VA Adjudication Manual, M21-1, IV.ii.2.B.2.b (Mar. 2, 2017) (noting that Compensation Service has determined that sensorineural hearing loss constitutes an organic disease of the nervous system). While the Adjudication Manual is not binding on the Board, in this instance it reflects VA’s position as to which diseases are considered organic diseases of the nervous system and therefore chronic. DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 38 U.S.C. § 1154(b) provides special rules for combat veterans discussed below. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is due to his in-service exposure to acoustic trauma. 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 Veteran has a current diagnosis of bilateral hearing loss. In addition, the Veteran’s military occupational specialty (MOS) in the Army was wireman, but he reported that he used and was around gunfire from 155 Howitzers, explosions, and aircrafts such as helicopters and C-130s. The Board finds the Veteran competent and credible in his assertions of in-service noise exposure, and therefore exposure to in-service acoustic trauma is conceded. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). STRs reflect an April 1969 induction report of medical examination with an audiogram showing pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 5 5 0 N/A 15 LEFT 10 10 5 N/A 20 There was no audiometry or whisper testing conducted at the time of separation in March 1971. An August 2015 VA treatment record reflects onset of bilateral hearing loss during his time in Vietnam when he was assigned to a large gun, and that he worked for 33 years in a paper mill. The Veteran also complained of occasional tinnitus. He had a hard time hearing his phone ring and trouble understanding conversation in crowds. An April 2016 VA audiological examination reflects that the Veteran experienced decreased hearing in both ears with constant bilateral tinnitus. The pure tone audiometry test results were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 30 35 60 70 75 LEFT 25 30 70 70 80 The results of the speech discrimination score (Maryland CNC word list) were 80 percent in the right ear and 76 percent in the left ear. The examiner opined that the Veteran’s hearing loss was less likely than not related to service. The examiner noted that he had normal hearing at enlistment, no discharge audiogram, and that he worked in a paper mill for 33 years. In her opinion, she found that this “significant factory noise over a long period of time was likely the cause of his current hearing loss.” During his November 2016 hearing, the Veteran testified that while his DD-214 listed his MOS as a wireman, he trained with the 155 Howitzer with no ear protection, and once in Vietnam he was exposed to noise from gun fires, explosions, and aircrafts. He explained that although he worked at the paper mill for 33 years, he was not exposed to loud noises during his employment. Specifically, he stated that his job positions were those of a janitor, a roll handler, a wrapper, and then fork-lift driver. Further, the paper mill enforced the use of hearing protection starting about five years after he began working there. He currently worked three days a week at a truck dealership opening packages and stocking parts, and he was not exposed to noise. He reported that when things were quiet he could hear what people said, but if there was background noise, like a television, he had trouble understanding people. Based on the evidence above, the Board finds that service connection for bilateral hearing loss is warranted. The audiometric scores on the April 2016 VA examination reflect that the Veteran has met the current disability requirement for hearing loss pursuant to 38 C.F.R. § 3.385. Moreover, the April 2016 VA examiner’s opinion is flawed because she relied, in part, on the lack of hearing loss diagnosis during service to reach her conclusion. The Court of Appeals for Veterans Claims (Court) in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Court’s holding in Hensley is consistent with 38 C.F.R. § 3.303 (d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See id. The reliance on the absence of hearing loss in service lessens the probative weight of the medical opinion. In addition, the VA examiner also relied on the Veteran’s post-service noise exposure while working in a paper mill to reach her conclusion. However, as the Veteran explained during his hearing, his positions at the paper mill did not involve exposure to noise. He was a janitor, a roll handler, a wrapper, and then a fork-lift driver; and he used hearing protection starting at least five years after he began to work there. Further, the examiner did not address the Veteran’s lay statements that he first started to experience bilateral hearing loss during service and that it worsened over the years. Thus, the Veteran’s competent and credible statements of in-service acoustic trauma and continuity of hearing loss symptomatology, and the Veteran’s lack of noise exposure and use of hearing protection for his post-service employment, all weigh in favor of a nexus between the current bilateral hearing loss disability and the in-service acoustic trauma. The evidence is thus at least evenly balanced as to whether the Veteran’s bilateral hearing loss is related to service. 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 a bilateral hearing loss disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 2. Entitlement to service connection for tinnitus Concerning the Veteran’s claim for tinnitus, the Board notes that service connection is also warranted for disability proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a), (b). Here, the April 2016 VA examiner opined that it was at least as likely as not that the Veteran’s tinnitus was secondary to his hearing loss. There is no contrary opinion. Thus, as the Board has granted service connection for bilateral hearing loss, service connection for tinnitus is warranted because it is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel