Citation Nr: 18154036 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-43 323 DATE: November 29, 2018 ORDER 1. The appeal to reopen a claim of service connection for a bilateral hearing loss disability is granted. 2. The appeal to reopen a claim of service connection for tinnitus is granted. 3. Service connection for tinnitus is granted. REMANDED 4. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. An unappealed September 2012 rating decision reopened a claim of service connection for bilateral hearing loss, but continued the denial of the claim, finding that the evidence did not show that a hearing loss disability would be related to the Veteran’s service. 2. Evidence received since September 2012 rating decision includes a September 2013 private medical opinion that suggests the Veteran’s hearing loss disability is related to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss; and together with evidence previously in the record showing exposure to noise in his military occupation in service raises a reasonable possibility of substantiating such claim. 3. An unappealed March 2006 rating decision denied the Veteran service connection for tinnitus, finding that such disability was not related to his service. 4. Evidence received since the March 2006 rating decision includes the Veteran’s statements describing continuity of his tinnitus since service; relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus; and raises a reasonable possibility of substantiating such claim. 5. Continuity of tinnitus since service is reasonably shown by the evidence of record. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a bilateral hearing loss disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received, and the claim of service connection for tinnitus may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110,1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1966 to November 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an May 2014 Department of Veterans Affairs (VA) rating decision. New and Material Evidence 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 and material evidence is defined by VA regulation. “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 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening”. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material has been received to reopen a claim of service connection for a bilateral hearing loss disability. A September 2012 rating decision continued a denial of service connection for bilateral hearing loss, finding that such disability was not shown to be related to the Veteran’s service. He did not appeal the decision or submit new and material evidence within the following year, and it became final. 38 U.S.C. § 7105. For evidence to relate to an unestablished fact necessary to substantiate the claim, and be considered new and material, it would have to be evidence received since the prior rating decision and tend to show the Veteran’s hearing loss disability might be related to his service. Evidence added to the record since September 2012 includes a September 2013 private audiology consultation report (submitted December 2013) wherein the provider opines the Veteran’s bilateral hearing loss is at least as likely as not caused by exposure to noise in service. Such evidence directly addresses a basis for the prior denial of this claim; pertains to an unestablished fact necessary to substantiate the claim; and, considering evidence in the record showing the Veteran’s military occupational specialty (MOS) was Armor Intelligence Specialist and the “low threshold” standard for reopening endorsed by the CAVC in Shade, raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the evidence received since the prior final rating decision is both new and material and that the claim of service connection for a bilateral hearing loss disability may be reopened. 2. The appeal to reopen a claim of service connection for tinnitus is granted. Service connection for tinnitus was previously denied by an unappealed February 2006 rating decision on the basis that the Veteran’s tinnitus was not shown to be related to his service. Accordingly, for evidence to relate to an unestablished fact necessary to substantiate the claim, and be considered new and material, it would have to be evidence or information received since the prior rating decision and tend to show a nexus between the Veteran’s tinnitus and his service. Evidence added to the record since February 2006 includes May 2014 Notice of Disagreement suggesting the Veteran had continuity of tinnitus since service. As tinnitus is a chronic disease listed in 38 C.F.R. § 3.309(a) (as an organic disease of the nervous system) and continuity of which can only be established by self-reports (because it is generally incapable of objective confirmation), such evidence bears directly on the basis for the prior denial of the claim; pertains to an unestablished fact necessary to substantiate the claim; and, considering the “low threshold” standard for reopening endorsed by the Court in Shade, raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the evidence received is both new and material and that the claim of service connection for tinnitus may be reopened. Service Connection Service connection may be granted for a disability due to disease or injury that was incurred or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (1) a present claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases (to include sensorineural hearing loss (SNHL) and tinnitus as organic diseases of the nervous system) may be presumed to be service connected if manifested to a compensable degree within a specified period following separation from service (one year for organic disease of the nervous system). 38 U.S.C. § 1112; 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. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, where the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection for such disability to be granted. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for hearing loss must show, as is required in any claim of service connection, that a current hearing loss is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 3. Service connection for tinnitus. The Veteran contends that his tinnitus is due to exposure in service to noise from artillery and weapons fire without hearing protection. The Veteran’s MOS was Armor Intelligence Specialist, and he was awarded Sharpshooter badge with a Rifle and Marksman Badges with the machine gun and pistol. His service treatment records contain no mention of complaints, diagnosis, or treatment pertaining to tinnitus. While a November 2005 private audiology consultation report notes the Veteran did not have significant tinnitus, a November 2005 audiology treatment record notes he was experiencing ringing in his ears. In November 2005 (received in February 2006) and August 2012 statements in support of his claim and on March 2006 VA examination, the Veteran reported that his tinnitus became manifest after he was exposed to weapons fire noise in service. It is not in dispute that the Veteran has tinnitus. He reports that he has experienced ringing in the ears. Unlike hearing loss disability, which must be established by specific tested, tinnitus is a disability that is diagnosed based on self-reports (by the person experiencing it) and is generally incapable of objective confirmation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). The Board finds no reason to question the credibility of the Veteran’s reports. It is also not in dispute that he was exposed to considerable noise during service. As tinnitus is a disease listed in 38 C.F.R. § 3.309(a), service connection may be established by showing continuity of symptomology. See 38 C.F.R. § 3.303 (b). The Veteran has consistently reported that his tinnitus began in service and that the symptoms have continued since. While the November 2005 audiology opinion found the Veteran was not experiencing significant tinnitus, a November 2005 audiology treatment record notes he was experiencing ringing in the ears at the time. There is nothing in the record (such as a denial of tinnitus during the intervening period since service) that directly contradicts his reports of continuity so as to render them not credible. Resolving reasonable doubt in the Veteran’s favor (as mandated in such circumstances, see 38 C.F.R. § 3.102), the Board finds that post-service continuity of tinnitus is shown. Service connection for tinnitus is warranted. REASONS FOR REMAND Service connection for bilateral hearing loss is remanded. While the additional evidence submitted by the Veteran is sufficient to reopen the claim, because the clarification from the September 2013 private provider obtained by the Regional Office suggests that the provider did not have familiarity with the entire record, the opinion offered regarding the etiology of the Veteran’s bilateral hearing loss is inadequate for rating purposes. The March 2006 VA examiner noted the Veteran reported exposure to noise in-service and that he did not have significant exposure to noise in his postservice occupation. The examiner did not address whether the acknowledged exposure to noise in service impacted on his development of his current hearing loss, and did not identify a more likely etiology for the Veteran’s hearing loss. The reopening of this claim triggers the VA’s duty to assist by obtaining an advisory medical opinion; considering that the record does not include a fully adequate opinion addressing the etiology of the Veteran’s hearing loss disability, the Board finds that an examination to secure an adequate opinion in this matter is necessary. The matter is REMANDED for the following: Arrange for a VA audiological examination of the Veteran (with audiometric studies) to ascertain the likely etiology of his hearing loss disability. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. On review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Identify the likely etiology for the Veteran’s bilateral hearing loss disability. Is it at least as likely as not (a 50% or better probability) that it is etiologically related to his service (to include as due to his acknowledged exposure to noise therein)? (b) If the hearing loss is determined to be unrelated to noise trauma in service, identify the etiology for the hearing loss considered more likely (and explain why that is so). All opinions must include rationale. The discussion should include comment on the private provider’s opinion the configuration of the Veteran’s hearing loss is consistent hearing loss due to exposure to noise and his reports that he was exposed to significant noise in service but minimal noise thereafter. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Naumovich, Law Clerk