Citation Nr: 18147136 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-37 433 DATE: November 5, 2018 ORDER New and material evidence has been presented, and the claim for service connection for hearing loss in the left ear is reopened. Service connection for hearing loss in the left ear is granted. Service connection for hearing loss in the right ear is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence associated with the claims file following the July 2001 denial of the Veteran’s claim for service connection for hearing loss in the left ear is new and material evidence. 2. Resolving reasonable doubt in the Veteran’s favor, his hearing loss in the left ear is etiologically related to active service. 3. Resolving reasonable doubt in the Veteran’s favor, his hearing loss in the right ear is etiologically related to active service. 4. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is etiologically related to active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss in the left ear. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for service connection for hearing loss in the left ear have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for hearing loss in the right ear have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 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 November 1966 to November 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran contends that he has hearing loss in his left hear, hearing loss in his right ear, and tinnitus as a result of his military service. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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) (2017). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. New and material evidence has been submitted to reopen the claim of service connection for hearing loss in left ear. A July 2001 rating decision denied the Veteran’s claim of service connection for hearing loss in left ear. At that time, the record showed that the Veteran did not have hearing loss for VA purposes. The Veteran was notified of the denial, but did not perfect an appeal, and the July 2001 rating decision became final. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In May 2014, the Veteran filed to reopen his claim for service connection for hearing loss in left ear. As mentioned above, the RO, in an October 2014 rating decision, denied service connection, finding that the evidence submitted was not new and material. Evidence added to the claims file since the final July 2001 rating decision includes VA treatment records and a September 2014 VA examination. These records constitute new and material evidence as no evidence establishing diagnosis of hearing loss in the left ear was present at the time of the July 2001 rating decision. The new evidence thus relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met, and the claim for service connection for hearing loss in left ear is reopened. Service Connection 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. § 1110; 38 C.F.R. § 3.303(a). 2. Entitlement to service connection for hearing loss in the left ear. 3. Entitlement to service connection for hearing loss in the right ear. 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, 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 Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). To establish service connection, the Veteran is not obliged to show that his hearing loss was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). The question for the Board is whether the Veteran’s current diagnosis of bilateral hearing loss either began during active service or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran’s hearing loss in the left ear and hearing loss in the right ear is etiologically related to his active service. A copy of the Veteran’s DD-214 is associated with the claims file. The DD-214 shows the Veteran’s military occupational specialty (MOS) was Aircraft Jet Mechanic. Service treatment records are associated with the file. The August 1966 entrance report of medical examination reflects the Veteran had a normal examination with no defects or diagnoses noted, and was determined to be fit for duty. However, the October 1970 exit report of medical examination reflects “mild hearing loss” was present, although the examiner said it was “due to cold.” No hearing loss for VA compensation purposes was observed at that time. VA treatment records from the Spartanburg CBOC are associated with the Veteran’s claims file. A May 2014 audiology speech consult record reflects an audiologic assessment was completed. The examiner diagnosed the Veteran with bilateral hearing loss. In September 2014, the Veteran underwent a VA examination. Audiological testing indicated the Veteran had bilateral hearing loss for VA purposes, but the examiner opined that based on the normal hearing thresholds at entrance and at separation, and significant post military noise exposure without hearing protection, the Veteran’s left and right ear hearing loss is less likely as not caused by or a result of military noise exposure. The examiner noted a high probability of noise based on MOS, but stated that the Veteran’s post military noise is significant as he was exposed to diesel truck engine noise at work and to recreational noise from motorboats, drag racing, shooting guns and using yard equipment without hearing protection. In a July 2016 lay statement, the Veteran stated that he began to have noticeable hearing loss while on active duty and that his post-service occupational and recreational noise exposure was less than reported by the September 2014 VA examiner. In light of the above, there is probative evidence for and against the claim. In particular, the Board finds the Veteran to be credible in his statements that he was exposed to loud noises in service and has had problems hearing ever since, given his consistent statements of noise exposure and his military occupation specialty. In giving due consideration to the places, types, and circumstances of his service, noise exposure is conceded. 38 U.S.C. § 1154(a). Service incurrence of acoustic trauma has been demonstrated. Further, the Board finds probative the VA audiological testing results, which indicate that the Veteran currently has bilateral hearing loss. The Board has no reason to doubt the Veteran’s credibility regarding his description of his post-service noise exposure or the continuity of his problems hearing from his time in service to the present. As such, and resolving all reasonable doubt in the Veteran’s favor, the service connection claims for hearing loss in the left ear and hearing loss in the right ear are granted. 4. Entitlement to service connection for tinnitus. The question for the Board is whether the Veteran’s current diagnosis of tinnitus began during active service, or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran’s tinnitus is etiologically related to his active service. As noted above, the Board has conceded the Veteran’s in-service noise exposure. Service treatment records are silent as to any complaint, diagnosis or treatment of tinnitus. VA treatment records from the Spartanburg CBOC are associated with the file. A May 2014 audiology speech consult record reflects an audiologic assessment was completed and showed hearing loss. A later May 2014 record reflects the Veteran attended a tinnitus education class. In September 2014, the Veteran underwent a VA examination. Audiological testing indicated the Veteran had tinnitus, but the examiner opined that based on the normal hearing thresholds at entrance and at separation, and significant post military noise exposure without hearing protection, the Veteran’s tinnitus is less likely as not caused by or a result of military noise exposure. The examiner also noted the Veteran stated he is unsure of the exact onset, but reports a five-year history of noticing the “sounds in his ears.” In a July 2016 lay statement, the Veteran states that he began to have ringing in his ears and noticeable hearing loss during service and that his post-service occupational and recreational noise exposure was significantly less than reported by the September 2014 VA examiner. In light of the above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. In particular, the Board notes that there is no objective testing for tinnitus, and that the Board has determined herein that the Veteran’s hearing loss in his left and right ear is related to his active service. As such, and resolving all reasonable doubt in the Veteran’s favor, the service-connection claim for tinnitus is granted. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel