Citation Nr: 18150089 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-27 334 DATE: November 15, 2018 ORDER Entitlement to service connection for bilateral tinnitus is granted. New and material evidence having been received, the claim of service connection for bilateral hearing loss is reopened and, to that extent only, the appeal is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The evidence indicates that the Veteran’s bilateral tinnitus began in service. 2. A decision issued in May 1997 declined to reopen a previously denied claim of service connection for bilateral hearing loss; the Veteran did not appeal the decision or submit any additional evidence within one year of the decision. 3. Evidence submitted since the May 1997 decision, including private audiometric testing and the Veteran’s testimony at hearing, is new and material and pertains to the basis for the previous denial of service connection. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304. 2. The May 1997 decision denying a petition to reopen the previously denied claim of service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. 3. Evidence received since the May 1997 decision is new and material and the claim of service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5107; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1963 to September 1966. Entitlement to service connection for bilateral tinnitus Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may also be granted for listed chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under § 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a)). Specifically, tinnitus is considered an organic disease of the nervous system, and therefore an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. §§ 3.307, 3.309. The evidence of record shows that the Veteran’s duties in service were consistent with hazardous noise exposure and a current diagnosis of tinnitus. The Veteran asserts that his tinnitus began in service and he is considered both credible and competent to provide evidence regarding his own symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, all of the criteria for service connection for tinnitus have been met and the claim is granted. Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for bilateral hearing loss Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision makers. “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. New and material evidence can 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. 38 C.F.R. § 3.156. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Additionally, the evidence necessary to meet the criteria of raising a reasonable possibility of substantiating the claim should be interpreted as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s claim of service connection for bilateral hearing loss was initially denied in 1966, on a finding that he had preexisting defective hearing. A rating decision issued in May 1997 declined to reopen the claim. At the time of the May 1997 decision, the evidence of record included the Veteran’s service treatment records and the Veteran’s statements. Since the May 1997 decision, the Veteran has submitted private audiometric evaluation records, additional statements regarding his noise exposure in service, and has undergone a VA examination of his hearing acuity. Such evidence potentially addresses where any prior hearing loss was aggravated by active service. As such, new and material evidence has been received and the claim of service connection for bilateral hearing loss is reopened. 38 C.F.R. § 3.156 REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss, which he contends had its onset in service as a result of his exposure to hazardous noise as a helicopter crew chief. The Board is in need of additional development in order to adjudicate the matter. Specifically, the Veteran’s service entrance examination shows defective hearing, which was the basis for the initial denial of his claim in 1966. He was provided additional examinations in service which showed hearing acuity that appears to be better, in some cases markedly so, than that noted at service entrance. As part of the Veteran’s claim of service connection, he has submitted private treatment records of audiometric evaluation and has been provided with a VA examination in 2013, which provided somewhat disparate pictures of the Veteran’s hearing acuity. The VA examination and opinion in 2013 does not account for the disparities in the Veteran’s hearing acuity in service nor the variations in more recent examinations. Nor does the opinion address the Veteran’s assertions that his pattern of hearing loss is most consistent with noise exposure and that he did not have any significant noise exposure after service separation. These deficiencies should be addressed on remand. In addition, if the evidence supports a conclusion that the Veteran had a hearing loss disability prior to service, the standard of proof for the claim is impacted. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s claim for bilateral hearing loss disability. Specifically, the examiner should offer an opinion as to the significance, if any, of the discrepancies in the Veteran’s hearing tests in service. The examiner should also address the significance, if any, of the Veteran’s disparate hearing test results during the life of the claim. The examiner should offer an opinion as to whether the totality of the service treatment evidence clearly and unmistakably establishes that the Veteran had hearing loss disability which pre-existed his military service. If a pre-existing hearing loss disability was shown, the examiner should then address whether there is clear and unmistakable evidence as to whether or not the disability worsened during service. If a pre-existing hearing loss is not shown, the examiner should offer an opinion as to whether the Veteran’s hearing loss pattern indicates an etiology of noise exposure. Finally, the examiner should offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that the Veteran’s current hearing loss disability was incurred in service or otherwise the result of noise exposure in service. The examiner should provide a statement of the rationale or reasons for all opinions provided. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel