Citation Nr: 1815451 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 13-02 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss disability, and if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus, and if so, whether the reopened claim should be granted. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran had active air service from December 1960 to January 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that the Veteran has requested that he be afforded a hearing before the Board. A review of the record shows that the Veteran was scheduled for his requested hearing in February 2018, but was not notified of that hearing. As discussed below, the Board has found that the evidence currently of record is sufficient to grant the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus. Therefore, there is no need to further delay a decision of those issues. However, the Board has deferred adjudication of the issue of entitlement to service connection for hypertension until the Veteran is afforded the opportunity to report for his requested hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). FINDINGS OF FACT 1. An unappealed October 2006 rating decision denied service connection for bilateral hearing loss disability and tinnitus. 2. The evidence associated with the record subsequent to the October 2006 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims, is neither cumulative nor redundant of evidence already of course, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus. 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 a claim of entitlement to service connection for bilateral hearing loss disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. Bilateral hearing loss disability was incurred in active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 4. Tinnitus was incurred in active service. 38 U.S.C. §§1110, 1131; 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to Reopen In an October 2006 rating decision, the Veteran was denied entitlement to service connection for bilateral hearing loss disability and tinnitus on the basis that the disabilities were not caused by or incurred in active service. The Veteran did not appeal that decision. The pertinent evidence that has been added to the record since the October 2006 rating decision includes a January 2012 VA audiology evaluation report, which showed the Veteran to have current diagnoses of bilateral hearing loss disability and tinnitus; and the Veteran's statements that he has had bilateral hearing loss disability and tinnitus since his active service. The Board finds that the additional evidence is new and material. In this regard, the evidence has not previously been considered by VA and it raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus. Accordingly, reopening of the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus is warranted. Service Connection for Bilateral Hearing Loss Disability and Tinnitus The Veteran has asserted that he has bilateral hearing loss disability and tinnitus as a result of exposure to jet engine and other flight line noise in the course of his duties as a supply specialist and inventory clerk. A review of the Veteran's DD Form 214 shows that his military occupational specialty (MOS) during active service was in fact supply specialist, with a secondary MOS of inventory clerk. The Board finds that the reported exposure to hazardous noise is consistent with the facts and circumstances of the Veteran's active service. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) are silent for complaints of, or treatment for bilateral hearing loss disability or tinnitus while the Veteran was in active service. However, the Veteran is competent to report that he first experienced symptoms of bilateral hearing loss disability and tinnitus in active service and that the symptoms have continued since that time. 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 January 2012, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported the above described noise exposure. The examiner diagnosed tinnitus and bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2017). The examiner opined that it was less likely as not that the Veteran's bilateral hearing loss disability and tinnitus were caused by, or the result of an event in active service. In this regard, the examiner noted that the Veteran had normal hearing at separation and his hearing had not undergone any significant changes while he was in active service. The examiner further noted that the 2005 Institute of Medicine study showed that there was no scientific basis for the delayed onset of noise induced hearing loss. The examiner noted that it was far more likely that the Veteran's bilateral hearing loss disability and tinnitus were the result of post-service factors. With regard to the Veteran's tinnitus, the examiner also noted that noise-induced tinnitus required the association of the onset with a specific event and that the Veteran did not report such. The Board finds that the January 2012 VA audiology opinion is inadequate for adjudication purposes. In this regard, the Board notes that the examiner relied heavily on the 2005 study conducted by the Institute of Medicine, noting that the study found no scientific basis for delayed onset of noise induced hearing loss. However, it appears that the examiner miscited that study. The Board's reading of that study tends to indicate that the Institute of Medicine found that there had not been enough testing conducted in humans or laboratory animals to affirmatively state that delayed onset of noise induced hearing loss was not possible. Further, studies in laboratory rats that have been conducted since the Institute of Medicine study in 2005 tend to show that there is some scientific data to support a finding of delayed onset noise induced hearing loss. Additionally, the examiner did not fully consider the Veteran's lay statements regarding the onset and continuity of his symptoms. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board notes that 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). As noted above, the Veteran is competent to identify reduced hearing acuity and symptoms of tinnitus, and his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently reported that he first experienced hearing loss and tinnitus while in active service and that he has continued to experience hearing loss and tinnitus since that time, and those statements have been found credible. While there is a negative medical opinion of record, that opinion did not consider all the pertinent facts and did not provide an adequate rationale supporting the conclusions made. Furthermore, the Veteran has current diagnoses of tinnitus and bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385 (2017). Accordingly, the Board finds that the evidence for and against the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus 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 tinnitus is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, reopening the claim of entitlement to service connection for bilateral hearing loss disability is granted. New and material evidence having been received, reopening the claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs