Citation Nr: 18152352 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-30 148 DATE: November 21, 2018 ORDER The petition to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. The petition to reopen the claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s original claims for service connection for bilateral hearing loss and tinnitus were denied by an August 2011 rating decision. The Veteran did not perfect an appeal of that decision. 2. Since the August 2011 rating decision, evidence was added to the record that was not previously considered by agency decisionmakers and that relates to unestablished facts necessary to substantiate each claim. 3. The evidence is in equipoise that the Veteran’s current bilateral hearing loss is etiologically related to acoustic trauma sustained in service. 4. The evidence is in equipoise that the Veteran’s current tinnitus is etiologically related to acoustic trauma sustained in service. CONCLUSIONS OF LAW 1. The August 2011 rating decision denying the Veteran’s claims for service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence added to the record since the August 2011 rating decision is new and material, and the claims for entitlement to service connection for bilateral hearing loss and for tinnitus are reopened. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(a). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to March 1971. The Veteran previously filed claims for service connection for bilateral hearing loss and tinnitus, which claims were denied in an August 2011 rating decision. In March 2014, the Veteran petitioned to reopen the claims of service connection. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) granting the Veteran’s petition to reopen the claim for service connection for bilateral hearing loss but denying entitlement, and denying the Veteran’s application to reopen the claim for service connection for tinnitus. The Veteran appeared in a hearing before the Board via videoconference in July 2016. A. Petitions to Reopen Though the RO’s rating decision rendered a decision in favor of the Veteran regarding his application to reopen the claim for service connection for bilateral hearing loss, the new and material evidence requirement is a material legal issue which the Board must independently address regardless of the RO’s actions. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). The August 2011 rating decision denying the Veteran’s previous claims for service connection for bilateral hearing loss and tinnitus was not appealed and therefore is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Claims denied by a final decision normally may not be reopened, but an exception exists if a veteran submits new and material evidence. 38 U.S.C. § 5108(a). “New” evidence means evidence not previously submitted to agency decisionmakers, 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. 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(a). The phrase “raises a reasonable possibility of substantiating the claim” is a “low threshold” that “must be viewed as enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The August 2011 rating decision found that the Veteran had not established a causal link between service and his current hearing loss and tinnitus. Since then the Veteran submitted a September 2014 private medical opinion concluding that the Veteran’s bilateral hearing loss and tinnitus are at least as likely as not related to acoustic trauma incurred in service. This evidence was not previously considered by agency decisionmakers, and it relates to the unestablished element in each claim of a nexus. Shade, 24 Vet. App. at 120-22. The Board finds that this evidence, which is competent and presumed credible, Justus v. Principi, 3 Vet. App. 510, 513 (1992), raises a reasonable possibility of substantiating the claims. In turn, the Board finds that this evidence is new and material, and will grant the Veteran’s application to reopen the claims for service connection for hearing loss and tinnitus. 38 C.F.R. § 3.156; see Shade, 24 Vet. App. at 121. B. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. That an injury or disease occurred in service is not enough; there must be disability resulting from that injury or disease. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Turning to the evidence, the Veteran’s service personnel records reflect that the Veteran’s occupational specialty was artillery and that he attained an expertise with the M-16 and M-14. Service treatment records (STRs) are silent regarding any complaint of hearing loss or tinnitus. Results of audiometric testing administered at separation show no hearing-loss disability. A VA examination was afforded to the Veteran in August 2011. The examiner noted having reviewed the Veteran’s service records but did not indicate having interviewed the Veteran to take his history. The examiner concluded that the Veteran’s hearing loss less likely than not was caused by service because the service records showed no significant change in the Veteran’s hearing during service. The examiner also concluded that the Veteran’s tinnitus less likely than not was caused by service because the Veteran reported that the tinnitus began ten years before the date of the exam, an onset that would be approximately thirty years after service. In October 2013, a private certified hearing instrument specialist examined the Veteran, reviewed his service duties, and considered the August 2011 VA opinion. The October 2013 specialist opined that the Veteran’s hearing loss is a classic case of acoustic trauma, and intimated a causal relationship to service but did not expressly provide an opinion on the likelihood. The opinion questioned the rationale of the August 2011 VA examiner’s opinion, asserting that it takes decades for acoustic trauma to manifest into a measurable hearing loss or into tinnitus. A September 2014 opinion from a private audiologist examined the Veteran and opined that the Veteran’s bilateral hearing loss and tinnitus are at least as likely as not related to acoustic trauma in service. The audiologist reviewed the Veteran’s service records and exposure in service, noting that the Veteran recalled having tinnitus as far back as 1971. The audiologist recorded that the Veteran recalled having worn hearing protection but stated that firearms can exceed a decibel level that can cause immediate and long-term damage. The opinion also noted that the Veteran’s separation examination showed no hearing loss but explained that acoustic trauma cumulatively damages hair cells such that early instances of acoustic trauma may not result in perceptible symptoms until later. In the audiologist’s opinion, given the amount of noise the Veteran was exposed to, the Veteran’s tinnitus is likely caused by the Veteran’s hearing loss. At the July 2016 hearing before the Board, the Veteran testified that in addition to noise from small arms fire, three to four times a month he was near Howitzer fire, sometimes without proper hearing protection. The Veteran stated that he first noticed hearing problems and ringing in the ears in service, particularly after field exercises. The Veteran related that after service he was a heavy equipment operator and worked with a roofing company, though he testified that this latter job did not involve excessive noise exposure and that he wore proper hearing protection. The Veteran’s claims file includes a record of yearly hearing testing administered by the Veteran’s post-service employer. 1. Bilateral Hearing Loss The Board first finds that the Veteran suffers a current disability of hearing loss in both ears. Testing at the August 2011 examination showed hearing loss qualifying as a disability for VA purposes in the Veteran’s left ear but not his right ear. September 2014 testing results, however, showed impaired hearing in the Veteran’s right ear qualifying as a disability for VA purposes. 38 C.F.R. § 3.385. Next, the Board finds that the Veteran sustained acoustic trauma in service. The Veteran testified that he was exposed to the noise from artillery fire and small arms fire, and his service records corroborate an artillery specialty and an expertise in the M-14 and M-16. At the hearing, the Veteran stated he experienced ringing in the ears and other hearing problems in service, especially after field exercises, and he is competent to report these observable symptoms. Barr. v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Finally, the Board finds the evidence is in equipoise whether the Veteran’s current bilateral hearing loss is causally related to the acoustic trauma sustained in service. Among the other relevant evidence of record, the August 2011 VA examination, October 2013 opinion, and September 2014 opinion bear on the matter. The August 2011 VA examiner’s conclusion rested on an etiology theory that finds causation between hearing loss and service only where there is significant change in a veteran’s hearing between the time the veteran enters and exits service, as measured by audiometric testing. The October 2013 and September 2014 opinions advanced an understanding of hearing loss as potentially not manifesting measurably until years after the acoustic trauma. The October 2013 opinion expressly challenged the August 2011 examiner’s rationale, though did not provide any rationale to support its own theory. The September 2014 opinion, however, discussed the hair-cell biomechanics behind the delayed onset of measurable hearing loss. All three opinions were made after reviewing the Veteran’s noise exposure in service, and the August 2011 and September 2014 examiners accounted for his separation audiometric testing. None of the examinations expressly accounted for the Veteran’s post-service work history. Considering these pieces of evidence as well as the totality of the other evidence of record, the Board concludes that there is an approximate balance of positive and negative evidence as to whether the Veteran’s hearing loss is etiologically related to the acoustic trauma sustained in service. Where the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Tinnitus First, the Board finds that the Veteran suffers a current disability of tinnitus. Tinnitus by definition is “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 1914 (30th ed. 2003). Both at the examinations and before the Board the Veteran has maintained that he experiences a ringing in his ears. At the Board hearing he testified that he especially notices the ringing in silence; he has been prescribed a sleeping aid to help him sleep through the buzzing in his ears. The Veteran is competent to describe these symptoms, as they are capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Next, the Board further finds that the Veteran suffered acoustic trauma in service. As discussed above, the Veteran’s testimony that he was exposed to high levels of noise in the artillery unit and when around small arms fire is consistent with the circumstances of his service as shown by service records. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Finally, the Board finds the evidence is in equipoise whether the Veteran’s current tinnitus is causally related to the acoustic trauma sustained in service. The August 2011 opinion that the Veteran’s reported onset of tinnitus approximately thirty years after service was not consistent with incurrence in service implicitly reasoned on an etiology theory that tinnitus cannot have a delayed onset. The October 2013 opinion, though it did not offer an opinion about the Veteran’s particular case, responded to the August 2011 opinion by asserting that it takes decades for acoustic trauma to manifest into tinnitus. The September 2014 opinion stated that it may take years before acoustic trauma manifests in a perceptible change in hearing “even though tinnitus may be constant” and ultimately concluded that the Veteran’s tinnitus is a result of his service-connected hearing loss. Considering this evidence as well as the totality of the other evidence of record, the Board concludes that there is an approximate balance of positive and negative evidence as to whether the Veteran’s tinnitus is etiologically related to the acoustic trauma sustained in service. Where the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Davis, Associate Counsel