Citation Nr: 20006683 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 17-03 649 DATE: January 27, 2020 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss. Entitlement to service connection for hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. A January 2008 rating decision previously considered and denied the claim for service connection for hearing loss and was not appealed. 2. Additional evidence since received, however, relates to unestablished facts needed to substantiate this claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating this claim. 3. It is just as likely as not the Veteran’s hearing loss and tinnitus are the result of noise exposure and consequent injury (acoustic trauma) during his service. CONCLUSIONS OF LAW 1. The January 2008 rating decision that earlier considered and denied service connection for hearing loss is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2018). 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria are met for entitlement to service connection for hearing loss. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria also are met for entitlement to service connection for tinnitus. 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 served on active duty in the United States Army from January 1966 to January 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In support of these claims, the Veteran testified at a travel Board hearing in November 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record.   1. Whether new and material evidence has been submitted to reopen the claim for service connection for hearing loss In August 2007, the Veteran filed a claim for service connection for hearing loss, which the RO denied in a January 2008 rating decision. He did not appeal that decision or submit any new and material evidence pertaining to this claim within a year of receiving notification of that decision, in turn meaning that decision became final and binding based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. At the time of that January 2008 rating decision, the evidence of record included the Veteran’s service treatment records (STRs), post-service treatment records, and the report of his VA compensation examinations. The claims file contained no evidence, however, linking his claimed disability to his military service. This claim may be reopened if new and material evidence has been received since that prior, final and binding, denial of this claim. 38 U.S.C. § 5108. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed – unless inherently incredible or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court/CAVC) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Additional evidence received since the January 2008 rating decision notably includes a private medical opinion linking the Veteran’s claimed hearing loss to his service as well as hearing testimony from the Veteran and his wife, under oath, alleging the same. Because this additional, more recent, evidence was not in the file when the RO previously considered this claim, it is new. Also, since this additional evidence tends to establish the required correlation (“nexus”) between the claimed disability and the Veteran’s service, this evidence also is material. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Accordingly, this claim is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. The Court has held that “the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court also explained in Hensley that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service – if there is sufficient evidence of a relationship between the Veteran’s service and his current disability, as opposed to other (“intercurrent”) causes. The record on appeal confirms the Veteran has a current diagnosis of bilateral (i.e., left and right ear) hearing loss that is sufficiently severe to, in turn, be considered a ratable disability for VA compensation purposes because of auditory thresholds of 40 decibels or greater in the relevant frequencies. See VA examinations, January 2008 and October 2016. In addition, VA concedes acoustic trauma in service based on his military occupational specialty (MOS) of automatic weapons crewman. See DD Form 214, January 1968. Therefore, the remaining question is whether the currently-diagnosed bilateral hearing loss disability is related to the conceded noise exposure in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). The Board concludes that there is indeed this correlation. The Veteran’s private examiner opined in the report of his October 2015 exam that the Veteran’s hearing loss is as likely as not caused by the acoustic trauma he sustained while in service. The examiner explained that the Veteran’s degree and pattern of hearing loss is consistent with the acoustic trauma he experienced in service and that it is consistent with medical literature that he would not experience permanent hearing loss immediately. The Board finds this opinion highly probative and affords it a lot of weight since consistent with the other evidence of record and because it takes into account the circumstances, conditions and hardships of the Veteran’s service and his lay statements – including hearing testimony under oath. The Board is aware of the January 2008 and October 2016 VA examiners’ opinions to the contrary, as well as the opinion of the November 2015 examiner who did not examine the Veteran, concluding that the Veteran’s bilateral hearing loss disability is not at least as likely as not caused by or a result of an event in military service, referring especially to acoustic trauma. However, the reasoning provided by the examiners is inadequate and consequently their opinions ultimately have less probative weight. Notably, in explaining the underlying basis of their unfavorable nexus opinions, the VA examiners cited the absence of in-service documentation of treatment or complaints of hearing loss. In other words, they seemingly discounted any notion that hearing loss can have a “delayed onset”. As noted earlier the holding in Hensley does not require a finding that the Veteran’s hearing loss began in service, or even within a year of his discharge in the case of sensorineural hearing loss especially, only that there is sufficient evidence now linking it to his service. Additionally, none of the examiners seemed to consider the Veteran’s lay statements that his hearing loss symptoms began in service and progressively worsened over time. His wife also attested to that in her supporting hearing testimony, which also was under oath. As the VA examiners did not seem to consider the possibility of delayed onset hearing loss or discuss why it cannot occur or consider the Veteran’s lay statements and those of his wife, the Board finds these opinions to have less probative weight in comparison to the private’s examiner’s conversely favorable opinion. The Board thus is left with a record showing the Veteran had in-service noise exposure and that he currently has a ratable bilateral hearing loss disability that cannot be conclusively disassociated from his noise exposure in service. Accordingly, resolving this reasonable doubt in his favor, the Board finds that service connection for his hearing loss disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for tinnitus The Veteran contends that he also suffers from tinnitus owing to his military service. As noted previously, noise exposure in service is conceded based on his MOS as an automatic weapons crewman. Tinnitus is “a noise in the ear, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Because tinnitus is “subjective,” its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002).   For this reason, the Board finds that the Veteran is competent to report experiencing ringing in his ears, in other words that he has tinnitus. Moreover, as noted above, the Board has conceded noise exposure in service. Accordingly, the Board finds his competent statements regarding his tinnitus also are credible and, therefore, ultimately probative. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The October 2015 private examiner concluded the Veteran’s tinnitus is as likely as not a result of his acoustic trauma experienced in service. Additionally, the Veteran has credibly testified that he initially began experiencing tinnitus in service. Accordingly, service connection for tinnitus is granted, including inasmuch as tinnitus is often associated with hearing loss, so with the same condition that has been attributed to the Veteran’s military service. 38 C.F.R. § 3.310. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.