Citation Nr: 20004047 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 18-25 514 DATE: January 16, 2020 ORDER New and material evidence has been received and the claim of entitlement to service connection for bilateral hearing loss is reopened. Entitlement to service connection for bilateral hearing loss is granted. New and material evidence has been received and the claim of entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The December 2011 rating decision denying service connection for hearing loss is final. Medical evidence received subsequent to that decision is neither cumulative nor redundant of the evidence at the time of the December 2011 rating decision and, assuming its credibility, raises a reasonable probability of substantiating the claim. 2. The evidence of record is at least in equipoise as to whether the Veteran’s bilateral hearing loss is related to his in-service exposure to acoustic trauma. 3. The December 2011 rating decision denying service connection for tinnitus is final. Medical evidence received subsequent to that decision is neither cumulative nor redundant of the evidence at the time of the December 2011 rating decision and, assuming its credibility, raises a reasonable probability of substantiating the claim. 4. The Veteran has experienced continuity of symptomatology related to tinnitus from the time of his active duty to the present. CONCLUSIONS OF LAW 1. The December 2011 rating decision denying service connection for hearing loss is final and the evidence received subsequently is new and material to reopen the claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105. 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 3. The December 2011 rating decision denying service connection for tinnitus is final and the evidence received subsequently is new and material to reopen the claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105. 4. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1973 to August 1976, and then served in the United States Army Reserve from August 1973 to May 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss The Veteran contends that he is entitled to service connection for bilateral hearing loss. By way of procedural history, the Veteran was initially denied service connection for hearing loss in an unappealed December 2011 rating decision. In a July 2017 rating decision, the RO declined to reopen service connection, but in the March 2018 Statement of the Case (SOC), reopened service connection and denied the claim on the merits. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. New evidence is defined as 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). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). On October 12, 2017, VA received a private medical opinion from Dr. J. A. Ewing who provided a diagnosis of bilateral hearing loss with an opinion linking said hearing loss to the Veteran’s military service. The Board finds that this evidence was not submitted to VA prior to the December 2011 rating decision and that, assuming its credibility for purposes of deciding whether to reopen the claim, this evidence addresses a requirement of service connection that was previously denied; a current diagnosis of hearing loss. Therefore, this evidence is “new” and “material” and the Veteran’s claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Entitlement to service connection for bilateral hearing loss Having reopened this matter, the Board will now turn to entitlement to service connection. The Veteran contends that they are entitled to service connection for bilateral hearing loss due to exposure to acoustic trauma from naval guns firing while stationed on a destroyer. The Board concludes that the Veteran has a current disability that is related to exposure to acoustic trauma while on active duty service aboard a destroyer. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An August 30, 2011 VA treatment record notes the Veteran reported constant tinnitus since 1973 that has worsened and is now bothering him. The Veteran reported a history of loud noise exposure while in service consisting of firing weapons and wearing headphones. He described his hearing as “good” and stated he had no loud noise exposure after his service. Upon examination, mild sensorineural hearing loss in the right ear and mild to moderate sensorineural hearing loss in the left ear were noted. A December 20, 2016 VA treatment record notes the Veteran has known asymmetric hearing loss, with the left ear being worse. It was further noted that the Veteran had exposure to naval gunfire, with his left ear remaining unprotected. Hearing aids were ordered. A January 12, 2017 private medical opinion from E. Hill, an audioprosthologist at Audibel, notes that a hearing evaluation shows the Veteran has bilateral sensorineural hearing loss. The Veteran reported in-service noise exposure from his duties as a J.L. phone talker on the bridge of a vessel and being around 5-inch gunfire as a fire control technician. He further reported having ringing in his ears at that time. In his September 2017 Notice of Disagreement (NOD), the Veteran stated that he was a fire control technician on the USS Bigelow before he was a mail clerk. The Board notes that the Veteran’s DD Form 214 indicates the Veteran’s military occupational specialty (MOS) was postal clerk. However, it also indicates that the Veteran attended Postal Clerk Class “A” School at Fort Benjamin Harrison, Indiana from July 6, 1975 to August 8, 1975, nearly 2 years after entering active duty service. Furthermore, the Veteran’s service personnel records, though largely illegible, do verify that the Veteran was stationed aboard the USS Bigelow and then the USS Hawkins. Here, the Board finds the Veteran's lay statements regarding exposure to acoustic trauma to be credible and, as such, the Veteran's exposure to acoustic trauma is conceded. An October 2017 private medical opinion from Dr. J. A. Ewing, an otolaryngologist at Taylor Regional ENT, notes the Veteran reported a history of serving on active duty for 3 years in the Navy and 24 years in the Army Reserve. He further reported a history of being exposed to naval gunfire while on board the USS Hawkins. The Veteran also reported that he developed some ringing in his ears during that period and noticed some significant hearing loss. Upon examination, high frequency hearing loss and decreased speech discrimination were noted. The doctor opined that the Veteran’s high frequency hearing loss was secondary to acoustic trauma sustained during active duty military service. While the rationale is thin, the doctor based his opinion on the available evidence. As such, the Board finds this opinion to be probative. The Veteran was afforded a VA hearing loss and tinnitus examination in March 2018. The Veteran reported that while in the Navy he experienced louse noise from 5-inch naval guns. Upon examination, bilateral sensorineural hearing loss was noted. The examiner noted that 1973 and 1977 enlistment examinations show hearing is within normal limits with no significant threshold changes and stated that, given the amount of time elapsed between the Veteran's discharge and "the lack of evidence" that the veteran reported a hearing loss during that time, it is less likely than not that the Veteran's hearing loss was caused by his military service. Here, the examiner relied exclusively on the lack of diagnosed hearing loss while in service and the amount of time lapsed between the end of service and the diagnosis of hearing loss. See, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion); see also, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). Furthermore, while the examiner relied upon the October 1977 Army Reserve enlistment physical to show that there was no significant threshold change, the Board notes that the examiner disregarded the September 1976 Army Reserve enlistment physical which shows a much larger threshold shift. Based on the above, the Board finds this examination opinion is of no probative value. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral hearing loss is related to his service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus The Veteran contends that he is entitled to service connection for tinnitus. By way of procedural history, the Veteran was initially denied service connection for tinnitus in an unappealed December 2011 rating decision. In a July 2017 rating decision, the RO declined to reopen service connection, but in the March 2018 Statement of the Case (SOC), reopened service connection and denied the claim on the merits. On January 20, 2017, VA received a private medical opinion from E. Hill, an audioprosthologist, who provided a diagnosis of tinnitus with an opinion linking tinnitus to the Veteran’s military service. The Board finds that this evidence was not submitted to VA prior to the December 2011 rating decision and that, assuming its credibility for purposes of deciding whether to reopen the claim, this evidence addresses a requirement of service connection that was previously denied; a nexus linking the Veteran’s diagnosed tinnitus to his military service. Therefore, this evidence is “new” and “material” and the Veteran’s claim for service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. Entitlement to service connection for tinnitus Having reopened this matter, the Board will now turn to entitlement to service connection. The Veteran contends that they are entitled to service connection for tinnitus due to exposure to acoustic trauma from naval guns firing while stationed on a destroyer. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of tinnitus as evidenced by January 12, 2017 and March 2018 medical opinions. The Veteran's currently diagnosed tinnitus is a "chronic disease" under 38 C.F.R. § 3.309 (a). See, Fountain v. McDonald, Vet. App. 13-0540 (February 9, 2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309 (a) include tinnitus as an organic disease of the nervous system). As such, tinnitus is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. An August 30, 2011 VA treatment record notes the Veteran reported constant tinnitus since 1973 that has worsened and is now bothering him. The Veteran reported a history of loud noise exposure while in service consisting of firing weapons and wearing headphones. A January 12, 2017 private medical opinion from E. Hill, an audioprosthologist at Audibel, notes that a hearing evaluation shows the Veteran has bilateral sensorineural hearing loss. The Veteran reported in-service noise exposure from his duties as a J.L. phone talker on the bridge of a vessel and being around 5-inch gunfire as a fire control technician. He further reported having ringing in his ears at that time. I was opined that it is "50% or more likely" that the Veteran's tinnitus is related to his active duty service. An October 2017 private medical opinion from Dr. J. A. Ewing, an otolaryngologist at Taylor Regional ENT, notes the Veteran reported a history of serving on active duty for 3 years in the Navy and 24 years in the Army Reserve. He further reported a history of being exposed to naval gunfire while on board the USS Hawkins. The Veteran also reported that he developed some ringing in his ears during that period. The Veteran was afforded a VA hearing loss and tinnitus examination in March 2018. The Veteran reported that while in the Navy he experienced louse noise from 5-inch naval guns. Upon examination, bilateral sensorineural hearing loss was noted. The examiner opined that, "based on the available evidence", it is less likely than not that his tinnitus was caused by his military service. Based on the competent evidence of record, the Board finds that the Veteran continued to experience symptoms of tinnitus from the time of his active duty to the present. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such testimony is sufficient to establish service connection. Id. Here, the Board has conceded that the Veteran was exposed to loud noises while on active duty and the Veteran has credibly stated that while on active duty and ever since he has experienced ringing in his ears. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current tinnitus is related to his military service. The benefit of the doubt rule is therefore for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.