Citation Nr: 18147005 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-55 723 DATE: November 2, 2018 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for bilateral hearing loss has been received, the application to reopen this claim is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. An unappealed February 2011 rating decision denied service connection for bilateral hearing loss. 2. Evidence received since the February 2011 rating decision relates to unestablished facts necessary to substantiate the Veteran’s claims for service connection for bilateral hearing loss. 3. Resolving reasonable doubt in his favor, the Veteran has bilateral hearing loss attributable to his active military service. 4. Resolving reasonable doubt in his favor, the Veteran has tinnitus attributable to his active military service. CONCLUSIONS OF LAW 1. The February 2011 rating decision which denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. Evidence received since the February 2011 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1972 to September 1974. The Veteran had a hearing before a Decision Review Officer (DRO) in May 2018. A transcript of the hearing is of record. New and Material Generally, a claim denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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 (a) (2018). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence sufficient to properly reopen a service-connection claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92. The submission of “new and material” evidence is a jurisdictional prerequisite to the Board’s review on the merits of a previously denied claim. A February 2011 rating decision denied service connection for bilateral hearing loss. The RO found that the Veteran’s bilateral hearing loss was not related to his active duty service because he lacked a positive nexus between his military service and his bilateral hearing loss. Since that prior decision became final, the Veteran has submitted VA and private medical treatment records which note a diagnosis of hearing loss and which record his continued contentions of tinnitus symptomology, submitted a private audiologic opinion, and testified as to his acoustic trauma while in service at a DRO hearing in May 2018. Based on the foregoing evidence, the Board finds that the low threshold requirement for new and material evidence is satisfied with respect to the claim for bilateral hearing loss. Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the claim for bilateral hearing loss is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service. There must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of those frequencies 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 (2018). The United States Court of Appeals for Veterans Claims, in Hensley v. Brown, 5 Vet. App. 155 (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 medical relationship between the Veteran’s in-service exposure to loud noise and current disability. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran asserts that his bilateral hearing loss and tinnitus is as a result of his active service. During his May 2018 DRO hearing, he testified that he was exposed to acoustic trauma while in basic training. He also testified that his military job, which involved driving large and noisy trucks, further exposed him to acoustic trauma while in active service. The Veteran’s DD Form 214 reflects that his military occupational specialty was a mortar transportation operator. He also reports that he was exposed to gun fire and acoustic trauma without hearing protection during service. Given his consistent credible statements concerning his military MOS and taking into account his dates of service in the Army, his in-service exposure to acoustic trauma is conceded. The Veteran has consistently maintained that he first noticed ringing in his ears and loss of hearing acuity in service and has continued to experience the same symptoms from that time to the present. His service treatment records are silent as to any complaints of, or treatment for, tinnitus. The Board notes the Veteran’s service entrance examination notes a pre-existing left ear drum perforation which caused slight hearing loss; however, service records are silent as to any other complaints or treatment for hearing loss. His service entrance examination and service discharge examination reflected normal hearing. A November 2010 VA audiologic examination revealed pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) were as follows: 25, 30, 25, 35 and 40, and for the left ear: 20, 40, 40, 50, and 80. The examiner diagnosed bilateral hearing loss, but gave a negative etiological opinion that, as the Veteran had normal hearing upon service entrance and service discharge, it was less likely than not that his bilateral hearing was related to service. A November 2014 VA audiological examination report revealed pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) were as follows: 25, 35, 30, 40 and 50, and for the left ear: 25, 50, 55, 65, and 65. The examiner diagnosed sensorineural hearing loss in the right ear and mixed hearing loss in the left ear, but gave a negative etiological opinion. As rationale, the examiner stated the Veteran had normal hearing upon service entrance and service discharge, and it was therefore less likely than not that his bilateral hearing was related to service. The examiner also noted the Veteran’s report of tinnitus symptoms and opined his tinnitus was less likely than not related to service as he first reported symptoms forty years after service discharge. A March 2018 VA audiologic examination revealed pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) were as follows: 30, 40, 30, 45 and 50, and for the left ear: 45, 50, 55, 65, and 75. The examiner provided a negative etiologic opinion, and he opined the Veteran’s bilateral hearing loss was less likely than not related to his active service because the service entrance and service discharge examinations showed no evidence of a positive hearing threshold shift which would indicate acoustic trauma. The examiner similarly opined the Veteran’s claimed tinnitus was less likely than not related to service as there was no evidence of a hearing threshold shift while in service. A March 2014 private opinion from Dr. T.S. diagnosed bilateral hearing loss and tinnitus as well as recorded the Veteran’s report that his bilateral hearing loss and tinnitus symptoms began as a result of his history of acoustic trauma while in the military. Dr. T.S. gave no further rationale nor did she opine as to whether or not the Veteran’s bilateral hearing loss or tinnitus was as a result of his active service. Medical treatment notes of record reflect the Veteran has been diagnosed with bilateral hearing loss and tinnitus, but do not provide an etiological opinion concerning either claim. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As an initial matter, the Board notes that hearing loss and ringing in the ears are the types of symptoms that are readily amenable to lay observation as they are subjective to the claimant. Thus, the Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Several examination records and correspondence of record note the Veteran’s continued reports detailing his hearing loss and tinnitus as well as his contention that he was exposed to sound in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. The Board finds the Veteran’s statements are credible and probative. Upon consideration of the above evidence, the Board finds that, in resolving reasonable doubt in the Veteran’s favor, a grant of service connection for hearing loss and tinnitus is warranted. The evidence shows a current diagnosis of hearing loss and tinnitus, which the Veteran has reported began during service and has continued from that time to the present. As noted above, the competent medical evidence has identified that the Veteran carries a current diagnosis of hearing loss and tinnitus. The Board acknowledges that the November 2010, November 2014, and March 2018 VA examiners stated that it was less likely than not that the Veteran’s hearing loss and tinnitus began in, or is otherwise etiologically linked to, his active military service. However, the Board finds that these medical opinions did not give due consideration to the Veteran’s competent account of the onset of symptoms in service and their continuity thereafter, or to his credible and corroborated report of noise exposure in service. Thus, the Board affords the November 2010, November 2014, and March 2018 VA opinions no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also acknowledges the March 2014 private opinion of Dr. T.S. Although the opinion recorded the Veteran’s assertion of the onset of his bilateral hearing loss and tinnitus symptoms as a result of his military service, the doctor did not actually provide an etiological opinion concerning hearing loss and tinnitus. Therefore, the Board also affords the private March 2014 private opinion no probative weight. Id. Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran’s favor, a grant of service connection for hearing loss and tinnitus is warranted. Despite the absence of a medical nexus opinion linking bilateral hearing loss or tinnitus to the Veteran’s in-service noise exposure, service connection may be granted based on continuity of symptomatology of a chronic disease, which includes sensorineural hearing loss, under 38 C.F.R. § 3.309 (a). In this regard, the record contains credible evidence of a continuity of bilateral hearing loss and tinnitus symptomatology beginning in service and continuing thereafter. The Board has no reason to doubt the veracity of the Veteran regarding the onset of his bilateral hearing loss and tinnitus and the continuity of pertinent symptomatology. Therefore, the Board finds the Veteran’s competent and credible statements to be persuasive and probative. Based upon the Veteran’s noise exposure in service and his competent and credible reports of continuous hearing loss and tinnitus symptoms since service, the Board finds that his hearing loss and tinnitus are a result of his military service. With resolution of reasonable doubt in the Veteran’s favor, service connection for hearing loss and tinnitus is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel