Citation Nr: 18147200 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-33 822 DATE: November 2, 2018 ORDER The claim for service connection for right ear hearing loss is reopened. Service connection for right ear hearing loss is granted. REMANDED The claim for service connection for left hearing loss is remanded. The claim for service connection for tinnitus is remanded. FINDINGS OF FACT 1. The claim for service connection for right ear hearing loss was last denied in a July 1972 rating decision; the Veteran did not perfect an appeal of that decision. 2. New and material evidence has been received to reopen the service connection claim for right ear hearing loss. 3. The Veteran’s right ear hearing loss manifested during active service, and there has been a continuity of symptomology since service separation. CONCLUSIONS OF LAW 1. The July 1972 rating decision is final with respect to the denial of service connection for right ear hearing loss. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the service connection claim for right ear hearing loss are satisfied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for right ear hearing loss are satisfied. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to March 1970 This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). 1. The claim for service connection for right ear hearing loss is reopened. Law A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017) (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must 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. Id. In determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). If new and material evidence is received within one year after the date of mailing of an RO decision, it prevents that decision from becoming final and will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); see Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final); 38 C.F.R. § 3.400(q) (2017) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”). Analysis A July 1972 rating decision denied service connection for a right ear hearing loss disability. The Veteran initiated an appeal of that decision with a Notice of Disagreement, but did not perfect the appeal with a substantive appeal following issuance of a Statement of the Case in December 1972. See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2017) (setting forth the requirements for perfecting an appeal). Accordingly, the July 1972 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted a statement in May 2015 describing his in-service noise exposure and asserting that there has been a steady decline in his hearing since service. Such evidence was not previously of record, and relates to an unestablished fact necessary to substantiate the claim. Accordingly, his May 2015 statement constitutes new and material evidence. See 38 C.F.R. § 3.156(a). Hence, reopening is warranted. 2. Service connection for right ear hearing loss is granted. Law Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303(b). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ( Analysis For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone 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 (2017). The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. The March 2015 VA examination report reflects audiometric findings satisfying the criteria for a current right ear hearing loss disability. See 38 C.F.R. § 3.385. Service connection for right ear hearing loss is established based on continuity of symptomology. See 38 C.F.R. § 3.303(b). The Veteran’s February 1967 service entrance examination shows that his hearing was normal when he entered active service. The service treatment records show that in July 1968, the Veteran reported marked hearing loss in the right ear. In December 1968, he reported intermittent hearing loss in the right ear. Noise exposure in Vietnam was noted. The Veteran was diagnosed with sensorineural hearing loss based on an audiological examination. The January 1970 separation examination reflects audiometric findings showing normal hearing in the right ear. However, a June 1972 VA examination report showed hearing loss in the right ear on audiometric examination. The Veteran was diagnosed with sensorineural hearing loss in the right ear. The Veteran has stated that he noticed a steady decline in his hearing since service. See May 2015 VA Form 21-4148. The Board finds this statement is competent and credible, as it is consistent with the above records. In sum, the Veteran’s sensorineural right ear hearing loss was noted in service, and again diagnosed approximately two years later, in the June 1972 VA examination report. Given the close proximity in time of the latter diagnosis to the Veteran’s service, and the Veteran’s credible statement that he experienced a steady decline in his right ear hearing since active service, the Board finds that a continuity of symptomatology is established. When a chronic disease is noted in service and there is evidence of a continuity of symptoms after service, service connection will be established without requiring direct evidence of a medical nexus to service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. The evidence does not show post-service noise exposure or other intercurrent cause for the Veteran’s right ear hearing loss. See 38 C.F.R. § 3.303(b). The June 2015 VA medical opinion finding against a relationship to service lacks evidentiary weight, as it is not supported by an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, the evidence is at least in equipoise, and service connection for right ear hearing loss is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). REASONS FOR REMAND 1. The claim for service connection for left ear hearing loss is remanded. The June 2015 VA medical opinion is not sufficient to make an informed decision on the claim. Accordingly, a new VA opinion is warranted. 2. The claim for service connection for tinnitus is remanded. The Veteran claims service connection for tinnitus as secondary to hearing loss, or as directly related to in-service noise exposure. In light of the grant of service connection for right ear hearing loss, the claim for tinnitus is remanded for a medical opinion on secondary service connection. The matter is REMANDED for the following action: 1. Add to the file any outstanding VA treatment records dated since May 2016. 2. Obtain a VA medical opinion regarding service connection for left ear hearing loss, as specified below. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran’s left ear hearing loss is related to his established in-service noise exposure from combat in Vietnam, and as a crane operator working with a bull dozer and other heavy equipment. A complete explanation must be provided in support of the conclusion reached. Please note: It is not sufficient for the opinion to state that left ear hearing was recorded as normal during service without discussing the medical significance of this fact and accounting for the Veteran’s in-service noise exposure. 3. Obtain a VA medical opinion regarding service connection for tinnitus, as specified below. The examiner is asked to provide the following opinions: Direct service connection: Whether it is at least as likely as not (50% probability or more) that the Veteran’s tinnitus is linked to his in-service noise exposure. Secondary service connection: Whether it is at least as likely as not that the Veteran’s tinnitus is caused or aggravated by his hearing loss. The examiner must provide a complete explanation in support of the conclusion reached. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin, Counsel