Citation Nr: 18152862 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-53 715 DATE: November 26, 2018 ORDER New and material evidence having been received, the request to reopen a claim of service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Evidence received since the April 2013 Notification Letter denying service connection for tinnitus relate to an unestablished fact necessary to substantiate the claim, or a reasonable possibility of substantiating the claim. 2. Resolving all reasonable doubt in favor of the Veteran, the probative evidence of record shows that the Veteran continuously had symptoms of tinnitus since service and to the present. 3. The Veteran’s claimed bilateral hearing loss was not caused or aggravated by his service and did not manifest itself to a compensable degree within one year of active service. CONCLUSIONS OF LAW 1. The April 2013 decision denying service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of service connection for tinnitus. 38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 3. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307(a)(6), 3.309(e) (2017). 4. Bilateral hearing loss was not incurred or aggravated by active military service, and it may not be presumed to have been so incurred or aggravated. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1975 to January 1978. Claim to Reopen The Veteran is seeking to reopen a claim of service connection for tinnitus previously denied in an April 2013 Notification Letter. 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 shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers which bear directly and substantially upon the specific matter under consideration; such 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 deciding whether new and material evidence has been submitted, 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.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The evidence shows that the Veteran ’s claim of service connection for tinnitus was denied in an April 2013 Notification Letter given that the record was absent of a diagnosed disability. The Veteran filed to reopen his claim in December 2013. Evidence submitted since the April 2013 Notification Letter include a May 2014 VA audiology examination showing a diagnosis of tinnitus. The examination also shows that the Veteran reported that his tinnitus has been constant since service. Therefore, as the evidence is not cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim, the Board finds the evidence is new and material. Accordingly, the claim is reopened. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases (to include tinnitus and hearing loss as organic diseases of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation from service (one year for organic disease of the nervous system). 38 U.S.C. § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Tinnitus The Veteran is seeking service connection for tinnitus contending that his condition was caused by service. Specifically, the Veteran reported that while serving in the helicopter unit in service, he began to experience ringing in his ears and hearing loss. The Board notes that military personnel records show that the Veteran’s MOS is listed as flight operations coordinator, and has been noted as being “highly probable” for noise exposure. Therefore, the Board concedes acoustic trauma, and finds that the element of an in-service injury has been met. As noted above, post-service records show that the Veteran has a current diagnosis of tinnitus. Therefore, the determining factor for service connection is whether the Veteran’s tinnitus is causally related to his active duty service. After reviewing the record, the Board finds that service connection for tinnitus is warranted. In support thereof, the Board notes that, tinnitus, which manifests as ringing in the ears, is not the type of medical condition which requires specialized medical knowledge or training to assess. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the Veteran, as a lay person, is competent to speak to the fact that he perceives ringing in his ears, and that it has been continuous since active service. Here, the Veteran has consistently asserted that he began experiencing ringing in the ears since service as a result of working around aircrafts, and that the symptoms have continued to the present day. He has reported such in his written correspondence to VA, as well as his VA examination. Therefore, the Board finds the Veteran credible with regard to the continuity of tinnitus since service. The Board recognizes that the May 2014 audiologist found a negative nexus based on the absence of complaints of tinnitus while in service; however, the absence of complaints or treatment in service does not negate service connection. See 38 C.F.R. § 3.303 (d). Therefore, the Board finds the opinion inadequate in this regard, thereby offering low probative value. Based on the above, the Board finds that the Veteran’s tinnitus was present during service and has a continuity of symptomatology since service. As the Board finds that the Veteran’s lay statements have competently and credibly established continuity of symptomatology, and resolving reasonable doubt in favor of the Veteran, the claim for service connection must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(b) (2017). Bilateral hearing loss The Veteran is seeking service connection for bilateral hearing loss contending that his hearing loss was also caused from noise exposure while in service. As noted above, the Board has conceded acoustic trauma and finds that the element of an in-service injury has been met. In the Veteran’s May 2014 audiology examination, the Veteran was diagnosed with bilateral sensorineural hearing loss; however, the examiner determined that the Veteran’s hearing loss was less likely than not related to service. In doing so, the examiner found that for the Veteran’s right ear hearing loss, entrance and exit examinations revealed hearing within normal limits with no significant decrease in shifts in hearing. She further explained that this does not support hearing loss from acoustic trauma due to loud noises while in service. Concerning the Veteran’s left ear, the examiner noted that the Veteran’s entrance and exit examinations showed hearing within normal limits, except for a mild loss at 500Hz. However, the examiner determined that hearing loss/decrease at this frequency is not supportive or consistent with hearing loss from acoustic trauma or loud noise. The examiner explained the remaining frequencies remained unchanged (1kHz, 2kHz, 4kHz) from entrance to exit, and that these frequencies are associated more with having a hearing loss from acoustic trauma/loud noises. Moreover, with regard to both ears, the examiner noted that the Veteran had loud occupational noise following service while working at a plastic factory and steel plant without the use of hearing protection, and that the Veteran reported loud recreational noise of going to the airport to watch loud planes without the use of hearing protection. Given the above and remaining evidence, the Board finds that service connection for bilateral hearing loss is not warranted. Although the Veteran has a disability for VA compensation purposes, there is no evidence in the record to support a finding that the Veteran’s bilateral hearing loss was caused by service. Although the Veteran contends his hearing loss began in service, the Board finds the probative value of the May 2014 medical opinion outweighs the Veteran’s statements given the medical expertise of the examiner. Moreover, the examiner reviewed the Veteran’s claims file, solicited information from the Veteran, and examined the Veteran before rendering her opinion. The examiner also provided a detailed explanation and rationale for her opinion in explaining why the Veteran’s mild decrease in service is not associated with acoustic trauma. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, there is no other evidence of record, medical or lay, concerning the Veteran’s bilateral hearing loss that would support the Veteran’s contention. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s bilateral sensorineural hearing loss is related to service. The Board also finds that the Veteran is not entitled to presumptive service connection for his bilateral hearing loss as there is no evidence in the record that shows that the Veteran’s hearing loss began within one year after service. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim for service connection for bilateral hearing loss is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel