Citation Nr: 18150096 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-28 620 DATE: November 14, 2018 ORDER New and material evidence has been received to reopen claims of entitlement to service connection for bilateral hearing loss disability and tinnitus; the claims to reopen are granted. Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In a final October 2012 decision, the RO denied the Veteran’s claims for entitlement to service connection for bilateral hearing loss disability and tinnitus; new and material evidence to reopen the claims has been received. 2. Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss disability began in service. 3. Resolving reasonable doubt in favor of the Veteran, his tinnitus began in service. CONCLUSIONS OF LAW 1. Evidence received since the October 2012 decision that denied service connection for bilateral hearing loss disability and tinnitus, which was the last final denial with respect to these issues, is new and material; the claims are reopened. 38 U.S.C. §§ 1154 (a), 5108, 7105; 38 C.F.R. § 3.156, 20.200. 2. The criteria for entitlement to service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1969 to February 1971. These matters come before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA), Evidence Intake Center in Newnan, Georgia. These matters were then transferred to the VA Regional Office (RO) in Detroit, Michigan. In November 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The appellant’s claims for entitlement to service connection for bilateral hearing loss disability and tinnitus were denied in a final RO decision in October 2012. After a review of the evidence submitted in association with the appellant’s new claim to reopen which he filed in 2014, the Board finds that a June 2014 opinion from Dr. M.S. is new and material and, therefore, sufficient to reopen the appellant’s claims for service connection for bilateral hearing loss disability and tinnitus. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board may proceed to adjudicate the claim without prejudice to the Veteran as the benefit sought is granted in full and the RO had adjudicated the claims on the merits. Service Connection 1. Entitlement to service connection for bilateral hearing loss disability 2. Entitlement to service connection for tinnitus Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include hearing loss disability and tinnitus (as organic diseases of the nervous system), listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). The Veteran’s military personnel records reflect that his duties included serving as an armor crewman and heavy vehicle driver. The claims file includes a September 2011 private examination report from HearUSA which reflects the opinion of the provider that it is as likely as not that the Veteran’s hearing loss and tinnitus were caused by, or contributed to by, noise exposure in the Army while driving tanks and vehicles. The claims file also includes a private (ACA) June 2014 Hearing Evaluation Report from Dr. (audiologist) M.S. who opined, based on the Veteran’s reported history, that it is more likely than not that the Veteran’s hearing loss and associated tinnitus were caused by, or aggravated by, firearm noise and truck exhaust noise exposures that he incurred in the military. Dr. M.S. further opined that the Veteran’s hearing loss, with left ear loss being greater than right ear loss, is a characteristic of right-handed firearm users and also of truck drivers. An article on cochlear nerve degeneration is also associated with the claims file. The Veteran testified under oath that he noticed his hearing loss in service but that he declined to report it at that time. He reported to examiners that he has noticed the presence of tinnitus since the 1970s and in service (e.g. 2012 VA examination report and June 2014 ACA report). The Veteran is competent to report both the onset of his tinnitus symptoms and a continuity of symptoms to the present because tinnitus is a disability that is capable of observation by the person experiencing it, and generally is not capable of objective verification. See Charles v. Principi, 16 Vet. App. 370 (2002) (noting that, because tinnitus is “subjective,” its existence is generally determined by whether the Veteran claims to experience it). One way of substantiating a claim of service connection for tinnitus is by showing that the claimed disability became manifest in service and has persisted since that time. See 38 C.F.R. § 3.303 (b). The Veteran is also competent to report the onset of hearing acuity problems or diminished ability to hear; although he is not competent to diagnosis a hearing loss disability for VA purposes. The Board acknowledges the 2012 and 2014 VA clinical opinions which are against a finding that the Veteran’s hearing loss disability and tinnitus are at least as likely as not related to service. However, given the finding that the Veteran is competent and credible as to onset in service of symptoms, his in-service duties which can reasonably be expected to involve chronic exposure to loud noise, and the two private clinical opinions, the Board will resolve reasonable doubt in the Veteran’s favor; service connection is granted for bilateral hearing loss disability and tinnitus. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard