Citation Nr: 18144307 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-29 167 DATE: October 24, 2018 ORDER The claim for service connection for bilateral hearing loss is reopened The claim for service connection for bilateral tinnitus is reopened Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted.   FINDINGS OF FACT 1. An unappealed April 2003 rating decision denied the claim for service connection for bilateral hearing loss and bilateral tinnitus, and that decision became final. Evidence received since the unappealed April 2003 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss and bilateral tinnitus. 2. The Veteran’s bilateral hearing loss is related to in-service exposure to excessive noise. 3. The Veteran’s tinnitus is related to in-service exposure to excessive noise. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received, and the claim for service connection for bilateral tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to January 1973 and September 1990 to October 1990, with additional Air Force Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. New and Material Evidence The Veteran’s claim for service connection bilateral hearing loss and bilateral tinnitus was initially denied in an April 2003 rating decision. For the hearing loss claim, the claim was denied because the Veteran’s treatment records did not reflect a current diagnosis of bilateral hearing loss pursuant to 38 C.F.R. § 3.385. As to the tinnitus claim, the claim was denied because the evidence did not support a nexus between your reports of in-service noise exposure and your current condition. The RO notified the Veteran in an April 2003 denial letter later that month, but the Veteran did not appeal the decision and did not submit relevant evidence within one year of the decision. Therefore, the claim became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In May 2013, the Veteran filed a claim for service connection for bilateral hearing loss and bilateral tinnitus. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is “new” if it has not been previously submitted to agency decision makers. Id. Evidence is “material” if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the April 2003 denial, new evidence in the form of VA treatment records, a VA examination, lay statements, and private medical records has been associated with the claims file. This evidence is “new,” as it was not previously submitted to agency decision makers. Some of the evidence is also “material,” because the evidence relates to prior unestablished facts. See Shade, 24 Vet App. at 122. As the foregoing evidence confirms the presence of a current diagnosis for bilateral hearing loss and includes a medical nexus opinion as to the tinnitus claim, the new evidence relates to unestablished facts that are necessary to substantiate the Veteran’s claim. Thus, new and material evidence received since the unappealed April 2003 rating decision relates to prior unestablished facts, and the claims for service connection bilateral hearing loss and tinnitus are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade, 24 Vet App. at 122. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (Court) recently held that tinnitus was a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease’ of the nervous system.” Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Court also indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Id. at 272. A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other “than dishonorable.” 38 C.F.R. § 3.1 (d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserve. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserve or the National of any State. 38 C.F.R. § 3.6(d). 1. Contentions The Veteran seeks service connection for bilateral hearing loss and tinnitus. He contends that his hearing loss is the result of excessive noise exposure while serving in the air force. Specifically, he reports that working on the flight line he was consistently exposed to a high noise level. In a March 2017 affidavit, the Veteran stated that the “noise was so loud to the point where no one could talk to other people or hear anyone else speak.” Additionally, he contended that most of the time he did not wear hearing protection. When he did wear hearing protection, the protection was “not good.” Aside from his reports of excessive noise exposure while on the flight line, the Veterans offers other possible incidents that caused his hearing loss and tinnitus conditions, to include: testing acoustic equipment at high volume, repeated incident of ear infections in service, and small arms training. 2. Bilateral Hearing Loss According to miliary personnel records, the Veteran’s military occupational specialty was an avionic communications specialist during his period of active duty between May 1972 and January 1973. An audiometric test was performed during the Veteran’s April 1972 enlistment examination which showed pure-tone air conduction thresholds of 15, 5, 5, N/A, and 15 decibels in the right eat at 500, 1000, 2000, 3000, and 4000 Hertz (“relevant frequencies”), and 15, 10, 5, N/A, and 5 decibels in the left ear at relevant frequencies. The record does not reveal that the Veteran underwent separation examination. But, the record includes a periodic medical examination report while the Veteran was a reservist in May 1979. The May 1979 audiological testing showed pure-tone air conduction thresholds of 0, 0, 0, 0, and 10 decibels for the right ear at relevant frequencies, and 5, 0, 0, 0, and 0 decibels for the left ear at relevant frequencies. Following separation, in April 2003, the Veteran was afforded a VA examination. Audiological testing showed pure-tone air conduction thresholds of 15, 10, 10, 10, and 20 decibels for the right ear at relevant frequencies, and 5, 5, 5, 5, and 5 decibels for the left ear at relevant frequencies. The examiner reported a speech recognition score of 96 percent in the left ear and 100 percent for the left ear. The examination report documented an impression of normal bilateral hearing. In July 2014, the Veteran was afforded a second VA examination. Audiological testing showed pure-tone air conduction thresholds of 10, 15, 15, 20, and 50 decibels for the right ear at relevant frequencies, and 15, 15, 15, 20 and 35 decibels for the left ear at relevant frequencies. The examiner reported a speech recognition score of 96 percent in the left ear and 96 percent for the left ear. The examiner concluded that the Veteran’s right ear hearing loss is less likely than not related to the military service. For support, the examiner stated that the 2003 VA audiological examination showed normal hearing. The examiner also found that the Veteran’s hearing evaluation while on active duty were all normal. In regards to the left ear, the examiner concluded that the audiogram results did not demonstrate left ear hearing loss under VA regulations. Most recently, Dr. M.V. performed an audiological evaluation of the Veteran. Audiological testing showed pure-tone air conduction thresholds of 25, 20, 20, 25, and 65 decibels for the right ear at relevant frequencies, and 20, 20, 15, and 40 decibels for the left ear at relevant frequencies. The examiner reported a speech recognition score of 92 percent in the left ear and 92 percent for the left ear. Dr. M.V.’s examination report stated that the “[a]udiologic findings revealed normal hearing sensitivity (250-3000Hz) sloping moderately-severe sensorineural hearing loss in the right ear. The left ear manifested normal hearing sensitivity (250-3000Hz) sloping to a moderate sensorineural hearing loss.” The examiner opined that the Veteran’s hearing loss is as likely as not caused by noise exposure and acoustic trauma while in the military. The examiner found that during the Veteran’s nearly two decades of military service, with periods of ACDUTRA and INACDUTRA, the Veteran has been exposed to noise as a communications specialist as well as jet noise. The examiner stated that the Veteran “seldom utilized” hearing protection during service. Based on medical evidence of record, the Board finds that the evidence as to whether the Veteran’s bilateral ear hearing loss was caused by in-service acoustic trauma. In this regard, although Dr. M.V. opined that his bilateral hearing loss was related to acoustic trauma during service, the April 2003 and July 2014 VA examiners reached opposite conclusions. However, the April 2003 offered a negative nexus opinion because the Veteran’s bilateral hearing loss was not productive of a disability for VA purposes at the time. Also, the July 2014 VA examiner offered a similar reason in rendering his medical opinion as to the left ear. Since then, Dr. M.V.’s examination report verifies a current bilateral hearing loss disability and details a thorough nexus opinion. Dr. M.V. and the VA examiners are medical professionals and thus competent to render such opinions. The Veteran has consistently reported that he was not exposed to excessive noise while working his civilian employment or during the course of recreation. Each of the medical examiners acknowledged the Veteran’s nearly 20 years of service in the military, including over 16 years in the Air Force reserves. The VA examiners and Dr. M.V. documented the Veteran’s reports of working on flight lines in service and his exposure to excessive noise. In light of the positive and negative evidence, the Board will resolve all doubt in the Veteran’s favor and find that his currently diagnosed bilateral hearing loss was caused during his period of military service. Therefore, service connection for bilateral hearing loss is warranted. 2. Tinnitus The Veteran seeks service connection for tinnitus, asserting that he first experienced tinnitus in service and has continued to experience associated symptoms since that time. He believes that his tinnitus was caused by excessive noise exposure while working on the flight line as an avionic communication specialist. Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (Court) recently held that tinnitus was a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease’ of the nervous system.” Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Court also indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Id. at 272. The Veteran is competent to testify to observable symptoms such as “ringing” in his ears and has done so credibly during the course of this claim, including the July 2009 statement of the case. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). Thus, a current disability has been established. Though service treatment records are silent for complaints of tinnitus, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination “medical in nature,” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the Board finds the Veteran’s lay statements sufficient to establish in-service incurrence of tinnitus. The remaining question, then, is whether the Veteran’s current tinnitus is related to service. In this instance, the Board finds the Veteran’s statements regarding the in-service onset and continuation of his current tinnitus are sufficient to establish service connection. See 38 C.F.R. § 3.309(a); Fountain, 27 Vet. App. at 271-72. Further, Dr. M.V. opined in a September 2016 medical opinion that the Veteran’s tinnitus is a least as likely as not the result of military noise exposure. In so finding, it acknowledges that April 2003 and July 2014 VA audiological examiners opined that the Veteran’s current tinnitus was not related to service, citing the lack of in-service reports of tinnitus and normal hearing bilaterally at separation. However, in doing so, that examiner did not consider the Veteran’s consistent reports of experiencing tinnitus in service. (Continued on the next page)   In any event, in light of the positive and negative evidence of record, to specifically include the Veteran’s competent and credible statements describing ringing in his ears that began in service and continued thereafter as well as the Dr. M.V.’s September 2016 medical opinion, the Board finds that the evidence is at least in equipoise regarding whether he has current tinnitus that was incurred in service. Hence, affording him the benefit of the doubt, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). C. BOSELY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel