Citation Nr: 18149459 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-37 938 DATE: November 9, 2018 ORDER The application to reopen a claim of service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a February 1991 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss. The Veteran did not appeal that decision and new and material evidence was not received within one year after it was issued. 2. Evidence received since the February 1991 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 3. The evidence is at least evenly balanced as to whether the Veteran’s tinnitus is related to in-service noise exposure during his military service. CONCLUSIONS OF LAW 1. The February 1991 rating decision that denied the Veteran’s claim for entitlement to service connection for bilateral hearing is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Since the February 1991 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1963 to October 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO confirmed and continued the previous denial for service connection for bilateral hearing loss and denied service connection for tinnitus. In the October 2014 statement of the case (SOC), the Agency of Original Jurisdiction (AOJ) reopened the Veteran’s previously denied claim of entitlement to service for bilateral hearing loss; however, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001). New and Material Evidence Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a February 1991 rating decision, the RO denied the Veteran’s original claim of service connection for bilateral hearing loss on the basis that it was first noted at a time too remote from service to be related to service. The Veteran did not appeal that decision, nor was new and material evidence associated with the record within one year of its issuance. Accordingly, the February 1991 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the February 1991 rating decision consisted of the Veteran’s service treatment records (STRs). In August 2009, the Veteran submitted an application to reopen his previously denied claim of entitlement to service connection for bilateral hearing loss. Relevant evidence received after the February 1991 rating decision includes the Veteran’s statements, VA and private treatment records, a January 2010 letter from a private audiologist, and a September 2010 VA audiological examination. Specifically, the Veteran’s statements include his reports that has had bilateral hearing loss in and since service. The January 2010 letter from a private audiologist contains a positive nexus opinion between the Veteran’s bilateral hearing loss and his military service. In the September 2010 VA audiological examination report, the physician indicated that the Veteran’s audiological examination results were unreliable. The Veteran is presumed credible in his reports for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 513. In sum, the Veteran’s reports that he has bilateral hearing loss and that he has had it in and since service coupled with the private audiologist’s positive nexus opinion between the Veteran’s bilateral hearing loss and his military service relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. Therefore, the criteria for reopening the claim for service connection for bilateral hearing loss are met. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Entitlement to service connection for tinnitus. The Veteran claims that his tinnitus is due to his military service and that he has had ringing in his ears in and since service. See, e.g., VA Form 9 (substantive appeal) dated October 2014. He asserts that he was exposed to noise exposure during his military occupational specialty (MOS) as a boatswain mate. Additionally, he claims that during service, he was assigned to the starboard gun mount as a loader and gun captain. See Veteran’s statement dated January 2010. He reports that in this capacity, he was regularly exposed to loud noise, such as gun fire, which caused ringing in his ears. For the reasons below, entitlement to service connection for tinnitus is warranted. As to a current disability, tinnitus is a disability for which a lay person may offer a competent diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that ringing in the ears is capable of lay observation). Here, the Veteran reports ringing in his ears; thus, a current disability has been demonstrated. See, e.g., VA Form 9 (substantive appeal) dated October 2014. The Veteran’s statement concerning his in-service noise exposure are consistent with the evidence of record. For instance, his DD Form 214 confirms that his MOS was boatswain mate. Moreover, the Veteran submitted pictures of himself during service aboard ship with large weapons. In support of the Veteran’s claim, he submitted several statements corroborating his reports of his in-service noise exposure. Specifically, the Veteran’s in-service “Mount Captain” indicated that the Veteran was regularly exposed to loud noises such as gunfire and that he was not provided with hearing protection. See W.A., Jr.’s statement dated January 2010. Additionally, E.S., who severed with the Veteran during his active duty military service, provided a statement indicating that during service, he witnessed the Veteran regularly fire weapons. Therefore, considering the above and resolving any reasonable doubt in the Veteran’s favor, his in-service noise exposure is conceded. Thus, the in-service injury requirement has been met. This case turns on third element of service connection, whether the tinnitus is related to, or had its onset during, the Veteran’s military service. There is one opinion of record that addresses the etiology of the Veteran’s tinnitus. In a January 2010 letter, a private audiologist indicated that he interviewed the Veteran and then he opined that it is more likely than not that his tinnitus is due to his military noise exposure. The private audiologist reasoned that during the Veteran’s military service, he served as a boatswain mate and his military responsibilities involved firing large naval guns and working under helicopters during at sea replenishment without hearing protection. The private audiologist further stated that, thus, the Veteran was frequently exposed to loud environmental noise while involved in gunnery operations and helicopter duties. The January 2010 audiologist provided a detailed rationale for his conclusions based on an accurate characterization of the evidence of record and therefore, the opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no evidence the contrary. The evidence is therefore at least evenly balanced as to whether the Veteran’s tinnitus is related to his military service. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran claims that his bilateral hearing loss is due to his military service. See, e.g., VA Form 9 (substantive appeal) dated October 2014. In this case, a private audiologist provided a positive nexus opinion between the Veteran’s bilateral hearing loss and his military service. See private audiologist’s letter dated January 2010. However, bilateral hearing loss diagnosis, as defined by VA, has not been confirmed. Notably, the private audiologist provided an audiogram that performed in October 2009; however, the audiogram does not contain speech discrimination (Maryland CNC) scores, which are referenced in 38 C.F.R. § 3.385. Furthermore, audiological examinations in September 2009 and October 2010 reflect that the Veteran’s audiological results were either unreliable or inconsistent and therefore considered invalid. Therefore, a remand is warranted to afford the Veteran a VA examination to determine the nature of the Veteran’s bilateral hearing loss. The matter is REMANDED for the following action: Schedule the Veteran for an audiological examination to determine the nature of his bilateral hearing loss. The audiologist should conduct audiometric and speech discrimination (Maryland CNC) testing of the right and left ear. Any and all studies, tests, and evaluations deemed necessary by the audiologist should be performed. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel