Citation Nr: 18147799 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-42 804 DATE: November 6, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. An unappealed June 2014 rating decision denied entitlement to service-connection for tinnitus. 2. The evidence received since the June 2014 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for tinnitus. 3. Bilateral hearing loss disability and tinnitus are etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. Bilateral hearing loss disability was incurred in active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 3. Tinnitus was incurred in active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active military service from July 2000 to July 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 and May 2016 rating decisions. Claim to Reopen Tinnitus In a September 2013 rating decision, the Veteran was denied entitlement to service connection for tinnitus on the basis that the Veteran did not have a diagnosis of tinnitus. A June 2014 rating decision confirmed the denial of service connection for tinnitus. The Veteran did not appeal that decision. The evidence that has been received since the June 2014 rating decision includes various VA medical records, VA examinations, and relevant lay statements. The Board finds that the additional evidence is new and material. In this regard, it is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for tinnitus is reopened. Service Connection Hearing Loss and Tinnitus The Veteran has asserted that he has a bilateral hearing loss disability and tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran has reported that during active service he was exposed to hazardous noise in the form of helicopters and large munition explosions. The Board finds that the Veteran’s report of noise exposure during service is consistent with military service and the Veteran’s military occupational specialty (MOS). Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) do not show that the Veteran reported complaints of tinnitus or decreased hearing acuity during active service. However, the Veteran has reported that he first experienced decreased hearing acuity and tinnitus while he was in active service and that his symptoms have continued since that time. The Board notes that the Veteran is competent to report when he first had symptoms of tinnitus and bilateral hearing loss disability and that they have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In January 2016, the Veteran was afforded a VA audiological evaluation. At that time, the examiner diagnosed tinnitus and bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The VA examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss and tinnitus were related to service. In this regard, the examiner noted that a March 2001 audiological examination showed normal hearing, and that the Veteran’s MOS of a radio operator carried a low likelihood of noise exposure. In a July 2016 VA addendum medical opinion, a different examiner also opined that the Veteran’s bilateral hearing loss disability and tinnitus were less likely than not related to in-service noise exposure. In this regard, the examiner noted that the Veteran’s MOS did, in fact, placed him around loud noises. However, the examiner indicated that a February 2014 pre-deployment health assessment was silent for complaints of hearing loss or tinnitus. The examiner also noted that without the Veteran’s separation examination or his one-year post-service primary care medical records, she could only speculate as to whether his hearing loss was related to service. The Board finds the January 2016 and July 2016 VA medical opinions inadequate for adjudication purposes. In this regard, the Board notes that the examiners failed to consider the Veteran’s lay statements regarding the onset and continuity of his bilateral hearing loss disability and tinnitus. Further, the July 2016 VA examiner relied heavily based the negative opinion on the fact that the Veteran had no complaints of hearing loss or tinnitus during an in-service pre-deployment health assessment, which took place several months prior to his separation from service. That alone is not a sufficient basis for a negative conclusion. Additionally, the January 2016 VA examiner relied solely on the inaccurate premise that the Veteran’s MOS had a low likelihood of hazardous noise exposure. As the opinions are not adequate, they cannot serve as the basis of denials of entitlement to service connection. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify decreased hearing acuity and tinnitus, and his statements have been found credible. The Board concedes that the Veteran sustained acoustic trauma in active service. Moreover, the Veteran has competently and credibly reported decreased hearing acuity and tinnitus during and since his active service. The Veteran has a current diagnoses of bilateral hearing loss disability and tinnitus. There are no probative medical opinions against the claims. Therefore, the Board finds that the evidence for and against the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss disability and tinnitus is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel