Citation Nr: 18161026 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-53 019 DATE: December 28, 2018 ORDER New and material evidence having been submitted, the claim for service connection for hearing loss and tinnitus is reopened. Service connection for left ear hearing loss is granted. Service connection for right ear sensorineural hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. In a rating decision dated January 2011, service connection for bilateral hearing loss and tinnitus were denied. The Veteran did not appeal or submit new evidence within one year, and the decision became final. The Veteran filed to reopen his claim in August 2012, after which new and material evidence has been received. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of right ear hearing loss. 3. The Veteran’s left ear sensorineural hearing loss is related to his excessive military noise exposure in service. 4. The Veteran’s tinnitus is related to his excessive military noise exposure in service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim for service connection for bilateral hearing loss and tinnitus. 38 U.S.C. 5108; 38 C.F.R. § 3.102, 3.156(a), 3.159. 2. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for left ear sensorineural hearing loss are met. 38 U.S.C. §§ 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1973 to May 1976. 1. New and material evidence has been received and the claim to reopen service connection for hearing loss and tinnitus Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. As noted above, in a January 2011 rating decision, service connection for the Veteran’s bilateral hearing loss and tinnitus was denied. He did not appeal or submit new evidence within one year, and the decision became final. The Veteran filed to reopen his claim in August 2012. In connection with his claim, the Veteran was afforded a VA examination in October 2012, which provided a diagnosis of left ear hearing loss and tinnitus. In addition, the Veteran has submitted lay evidence in his Notice of Disagreement and his Substantive Appeal regarding the excessive noise exposure he experienced serving on the flight line and in an engine test cell while in the Navy. The evidence received since the January 2011 rating decision includes medical and lay evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. This evidence was not before adjudicators when the Veteran’s claim was previously denied, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to unestablished facts necessary to substantiate his claim and raises a reasonable possibility of substantiating the claims. Accordingly, the Veteran’s claim is reopened. Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) include sensorineural hearing loss and tinnitus. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” The provisions of subsection 3.303(b) for chronic diseases apply in this case, as sensorineural hearing loss and tinnitus are chronic diseases, and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a disability for the purposes of service connection. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 2. Service connection for left ear hearing loss The Veteran asserts in Substantive Appeal that his hearing loss is a result of his years serving in the Navy on the flight line and especially when he worked repairing jet engines. He wrote that this work, “gave me the greatest damage because here I would have to go up next to the bare jet engine while it was being run though all its high power settings, I would have to get up literally inches next to the engine trying to see if there would be any loss of pneumatic high pressure air around certain parts of the engine section.” The Board notes that the Veteran’s DD 214 shows his military occupational specialty was Aircraft Mechanic; excessive military noise exposure is conceded. On the authorized audiological evaluation in October 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 20 25 LEFT 20 25 20 30 40 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner diagnosed the Veteran with left ear sensorineural hearing loss. The examiner provided a positive nexus opinion and checked yes as to whether the Veteran’s hearing loss was at least as likely as not caused by or a result of an event in military service. In support of that conclusion, the examiner noted evidence of a temporary threshold shift in service and that hearing was normal by separation. In January 2013, VA asked the same examiner for clarification regarding the Veteran’s left ear hearing loss and her statement that there was a threshold shift during service but that his hearing was normal at separation. The examiner then provided a negative nexus opinion and stated that the Veteran’s hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Her rationale was the same language provided in the October 2012 examination: “Although there is evidence of a threshold shift in the service, veteran’s hearing was normal in both ears when released from active duty in 1976.” It is unclear to the Board why an addendum opinion was sought when the examiner had provided a sufficient rationale for her positive nexus opinion in October 2012, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Moreover, the Veteran’s service treatment records (STR) contain more than just evidence of a threshold hearing shift; they contain a diagnosis of left ear hearing loss (July 9, 1975 Report of Medical Examination). The Board finds that the October 2012 positive nexus statement is more probative than the January 2013 negative nexus statement, as the positive opinion was based on an interview with the Veteran with a detailed history of military noise exposure, a notation of her review of the STR, an audiological examination, and provided a sufficient rationale. The January 2013 opinion was based merely on a records review and did not address the excessive military noise exposure history noted in the October 2012 report, which the Board finds is a critical fact in the Veteran’s claim. Based on the foregoing, the Board finds that the Veteran has a diagnosis of sensorineural hearing loss, an in-service injury due to excessive noise exposure, and a positive medical nexus linking his current diagnosis to the in-service injury. Accordingly, service connection for left ear sensorineural hearing loss is warranted. 3. Service connection for right ear sensorineural hearing loss The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As shown above, in the VA examination conducted in October 2012, the examiner found that the Veteran’s right ear had normal hearing. The Board notes that for claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a disability for the purposes of service connection. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the Veteran’s hearing loss does not meet the definition of hearing loss for VA compensation purposes as his right ear does not show an auditory threshold of 40 decibels or greater, or a threshold of 26 decibels or greater, at any frequency. The Board finds that the Veteran’s right ear hearing loss is not a hearing loss disability for VA purposes. Accordingly, the claim must be denied and service connection for right ear hearing loss is not warranted. 4. Service connection for tinnitus As an initial matter, the Board observes that tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran asserts that his tinnitus is due to his time serving on the flight deck near jet launches. As noted above, military noise exposure has been conceded. The Veteran is competent to report tinnitus in the ears during service and since that time. Furthermore, the Board finds that the Veteran’s reports of tinnitus from his time on the flight deck are credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the Board notes that the October 2012 VA examiner provided a positive nexus statement: “The Veteran has a diagnosis of clinical hearing loss, and his or her tinnitus is at least as likely as not…a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss.” The examiner also opined that the Veteran’s tinnitus was less likely than not due to military noise exposure but provided no rationale. The Board finds that the preponderance of the medical evidence of record shows that the Veteran has a current diagnosis of tinnitus and that it is related to his excessive military noise exposure in service, as well as due to his service-connected hearing loss. Accordingly, service connection for tinnitus is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel