Citation Nr: 18158386 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-57 400 DATE: December 14, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for bilateral hearing loss disability is 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 an unappealed April 2007 rating decision, the Veteran was denied entitlement to service connection for bilateral hearing loss disability. 2. The evidence associated with the record subsequent to the April 2007 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss disability. 3. Bilateral hearing loss disability and tinnitus are etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen claims of entitlement to service connection for bilateral hearing loss disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 3. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from November 1974 to October 1981. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Claim to Reopen – Bilateral Hearing Loss Disability In the April 2007 rating decision, the Veteran was denied entitlement to service connection for bilateral hearing loss disability based on a finding that the Veteran did not have bilateral hearing loss that was related to his active service. The Veteran did not appeal that decision. The pertinent evidence received since the April 2007 rating decision includes evidence indicating that the Veteran has bilateral hearing loss disability that may be etiologically related to his active service. In this regard, at a May 2009 hearing, the Veteran testified that he had experienced decreased hearing acuity during active service as due to hazardous noise exposure. That evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss disability. Accordingly, reopening of the claim of entitlement to service connection for bilateral hearing loss disability is warranted. Service Connection – Bilateral Hearing Loss Disability and Tinnitus The Veteran has asserted that he has bilateral hearing loss disability and tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran has claimed hazardous noise exposure in the form of large trucks without proper ear protection during active service. A review of the Veteran’s service records shows that his military occupational specialties (MOS) during active duty included a motor vehicle operator and a heavy vehicle operator. The Board finds that the Veteran’s reported noise exposure is consistent with the facts and circumstances of his service. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) show that the Veteran had left ear hearing loss for VA purposes during active service. See April 1976 and February 1978 STRs. Moreover, the Veteran has reported that he first experienced bilateral decreased hearing acuity and tinnitus while in active service and that his symptoms have continued since that time. The Veteran is competent to report when he first experienced symptoms of hearing loss disability and tinnitus and that his symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In May 2011 and June 2016, the Veteran was afforded VA audiology evaluations. At those times, the Veteran reported the in-service noise exposure described above. Audiogram results showed the Veteran to have bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2018). The VA examiners diagnosed bilateral hearing loss disability for VA purposes and tinnitus. The examiners opined that the Veteran’s bilateral hearing loss disability and tinnitus were not caused by or the result of active service. In this regard, the May 2011 examiner noted that Veteran had had only temporary hearing loss, with no permanent shift in hearing during active service. The June 2016 VA examiner noted that because there were no frequency specific audiology evaluations at separation, an opinion as to the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus would require resorting to mere speculation. The Board finds the May 2011 and June 2016 VA audiology opinions to be inadequate for adjudication purposes. In this regard, the examiners did not give appropriate consideration to the Veteran’s lay statements regarding the onset and continuity of his symptoms. Moreover, the June 2016 VA audiology opinion did not adequately provide an opinion as to the nature and etiology of the Veteran’s bilateral hearing loss disability and tinnitus. As the opinions are not adequate, they cannot serve as the basis of a denial of entitlement to service connection. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, as noted above, the Veteran is competent to identify decreased hearing acuity and tinnitus, and his statements have been found credible. In sum, the Board concedes that the Veteran sustained acoustic trauma in active service. The Veteran has competently and credibly reported decreased hearing acuity and tinnitus in service and since. The Veteran has current diagnoses of bilateral hearing loss disability for VA purposes and tinnitus. There is no competent VA medical opinion of record against the claims. Accordingly, the Board finds that the evidence for and against the claims is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss disability and bilateral tinnitus is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel