Citation Nr: 18147191 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 14-31 030 DATE: November 2, 2018 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for tinnitus, is granted. New and material evidence having been received, the petition to reopen the claim for service connection for bilateral hearing loss, is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a July 2010 rating decision, the RO denied the claims for service connection for tinnitus and bilateral hearing loss. The Veteran did not appeal, and no new and material evidence was received within a year of the rating decision’s issuance. 2. Additional evidence received since the July 2010 decision is new and related to an unestablished fact necessary to substantiate the claims of service connection for tinnitus and bilateral hearing loss. 3. The Veteran has experienced ringing in his ears related to tinnitus since he separated from service. CONCLUSIONS OF LAW 1. The July 2010 rating decision that denied service connection for tinnitus and bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The evidence received since the July 2010 rating decision is new and material, and the claims for service connection for tinnitus and bilateral hearing loss are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from May 1968 to April 1970. This matter is 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). New and Material Evidence Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239, 239–40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. Id. In a July 2010 rating decision, the RO denied service connection for tinnitus and bilateral hearing loss. The RO determined that the Veteran did not have current tinnitus and/or bilateral hearing loss diagnoses. The Veteran did not appeal, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). Since the final denial, the Veteran has undergone a VA examination in January 2013. The examination shows that the Veteran has bilateral hearing loss for VA purposes as well as a tinnitus diagnosis. This evidence is new and material to the Veteran’s claims as it addresses whether the Veteran has bilateral hearing loss for VA purposes and tinnitus diagnoses. As such, the claims are reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain diseases, such as an organic disease of the nervous system, including sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§1101, 1112; 38 C.F.R. §§ 3.309(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Tinnitus is considered an organic disease of the nervous system, and as such is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, Oct. 4, 1995; see Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding 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’”); 38 C.F.R. §§ 3.307, 3.309. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When 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. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990).   1. Entitlement to service connection for tinnitus. The Veteran contends that he has had tinnitus since service. The Board concludes that while the Veteran’s tinnitus was not diagnosed during service, there has been continuity of the same symptomatology beginning in service. The Veteran has a current diagnosis of tinnitus as noted at the January 2013 VA examination; however, this VA examiner opined that the Veteran’s tinnitus was less likely than not related to military noise exposure. The examiner’s rationale was that the Veteran reported tinnitus beginning approximately 10 years prior to the examination. The Board finds this examination to have limited probative value as the examiner’s rationale acknowledged the Veteran’s statements regarding the onset of his tinnitus beginning ten years ago but did not account for numerous lay statements from the Veteran stating his tinnitus began during service. The Veteran asserts that his tinnitus is due to noise exposure in service from frequent helicopter travel. He is competent to report that he experienced symptoms of ear ringing during service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds that his lay statements are credible and competent and are entitled to probative weight as they are internally consistent and consistent with other evidence of record. Therefore, the Board finds that the evidence shows that Veteran’s tinnitus is related to hazardous noise exposure while in service, and that his tinnitus began in service and has continued since then. 38 C.F.R. § 3.303(b), 3.309(a). While there is a negative medical opinion regarding the etiology of the Veteran’s tinnitus, the Veteran has testified as to the onset of his tinnitus beginning while in service. As such, the Board finds that service connection for tinnitus is warranted. 38 C.F.R. § 3.303.   REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts service connection for his current diagnosis of bilateral hearing loss. He underwent a VA examination in January 2013. In the examination, it was noted that he has a current diagnosis of bilateral hearing loss for VA purposes. However, the examiner found that it was less likely than not that the Veteran’s bilateral hearing loss was related to service. The examiner reported that the Veteran stated that his hearing loss began 25-30 years ago, and that literature on hearing loss resulting from exposure to noise does not support delayed onset hearing loss. The Board finds this examination to be inadequate as the examiner overly relied on the Veteran’s bilateral hearing loss not occurring immediately in service. Additionally, the Board notes that the U.S. Court of Appeals for Veterans Claims (CAVC) has held that where there is no evidence of the Veteran’s claimed hearing disability until many years after separation from service, if the evidence “demonstrate[s] a medical relationship between the [V]eteran’s in-service exposure to loud noise and his current disability, it would follow that the [V]eteran incurred an injury in service....” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). As such, the Board finds that a new VA examination for the Veteran’s bilateral hearing loss is warranted. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to include all recent VA records addressing the Veteran’s obstructive sleep apnea and treatment. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After associating any treatment records with the claims file, schedule the Veteran for audiological examination by an appropriate audiologist to determine the nature and etiology of any hearing disability. The examiner is to provide an opinion whether it is at least as likely as not that his current bilateral hearing loss for VA purposes is related to an in-service injury, event, or disease, including hazardous noise. Additionally, the examiner is to address whether: it is at least as likely as not (50 percent or greater) that any hearing disability (1) began during active service, (2) manifested within one year after discharge (April 1970) from service, or (3) was noted during service with continuity of the same symptomatology since service. **Please note and account for the likely exposure to loud noise in service through frequent helicopter travel. Additionally, the Veteran is competent to state that he had hearing-related problems.** For each requested opinion above, a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel