Citation Nr: 20006786 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 18-25 033 DATE: January 28, 2020 ORDER Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. An October 2012 rating decision denied entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus. The Veteran did not perfect an appeal. 2. Evidence received since the October 2012 rating decision includes a private medical opinion, which relates to an unestablished fact necessary to substantiate the claims of service connection for bilateral hearing loss and tinnitus, and raises a reasonable possibility of substantiating such claims. 3. The evidence of record is in equipoise as to whether the Veteran’s bilateral hearing loss was incurred in or related to service. 4. Resolving all doubt in favor of the Veteran, the Veteran’s tinnitus had its onset during his military service. CONCLUSIONS OF LAW 1. The October 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since October 2012, and the claim of service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received since October 2012, and the claim of service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 5. The criteria for service connection for tinnitus have been met. 38 C.F.R. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1959 to December 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in December 2019. A transcript of the hearing is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Whether new and material evidence has been received to reopen claims of entitlement to service connection for bilateral hearing loss and tinnitus. In June 2016, the Veteran filed claims for entitlement to service connection for bilateral hearing loss and tinnitus. In an August 2016 rating decision, the RO reopened the claims and confirmed and continued the denial of service connection. Although the RO reopened the claims for service connection, the Board must determine on its own jurisdiction; thus, the issue of whether new and material evidence has been submitted to reopen the claims will be addressed. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 C.F.R. §§ 3.104, 20.1103. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decisionmakers. “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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (CAVC or Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. CAVC interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s initial claims of entitlement to service connection for bilateral hearing loss and tinnitus, were denied by the RO in a rating decision in October 2012. The basis for the denial was that the October 2012 VA examiner opined the conditions were not related to the Veteran’s active military service. No substantive appeal was received; therefore, the October 2012 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In June 2016, the Veteran filed claims for service connection for bilateral hearing loss and tinnitus. The evidence added to the records since the October 2012 rating decision includes a July 2017 private medical nexus opinion. This evidence was not previously of record at the time of the October 2012 rating decision. This evidence is also material because it bears directly on the issue of a link between exposure to acoustic trauma during active service and the Veteran’s current bilateral hearing loss and tinnitus, which is a reason that the claims were previously denied in the October 2012 rating decision. Thus, the new evidence relates to an unestablished fact necessary to substantiate claims of entitlement to service connection for bilateral hearing loss and tinnitus, particularly when considering the low threshold for reopening a claim as set forth in Shade, supra. Accordingly, the claims to entitlement to service connection for bilateral hearing loss and tinnitus, are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his current bilateral hearing loss disability, that he first experienced in service and has been continuous since service, can be attributed to his exposure to acoustic trauma during service. He has a current bilateral sensorineural hearing loss disability. See October 2012 and July 2016 VA examination reports. Significant noise exposure during military service has been conceded. See October 2012 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, 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. The CAVC has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The CAVC has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. Service treatment records are silent for complaints of, treatment for, or a diagnosis of bilateral hearing loss disability for VA purposes. However, the Veteran has reported that he first experienced decreased hearing acuity while in active service and that his symptoms have continued since that time. See December 2019 Hearing Transcript. The Veteran is competent to report when he first experienced symptoms of hearing loss disability and that his symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995). Moreover, the Board finds the Veteran to be credible in that respect, as his contention is consistent with the circumstances of his service. The October 2012 and July 2016 VA examiners opined that the Veteran’s current bilateral hearing loss was less likely due to service. The reasoning was there was no significant change or permanent shift in hearing thresholds from enlistment to separation in either ear. 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. The Veteran reported that while in the military as a weapons controller technician, he participated in war games during which he was exposed daily to tones of different frequencies and intensities through his headset without the benefit of hearing protection. The Veteran testified that his hearing loss began in service. See December 2019 Hearing Transcript. In his July 2017 Notice of Disagreement, the Veteran stated that he complained of his ear problems during active duty several times and “each time was advised that there was nothing they could do for me.” During the December 2019 hearing, the Veteran testified that he was exposed to explosions, “cherry bombs” and weapons fire during basic training. He also testified that during service, he would work three-day war game missions and would be on the scope for an 8-hour shift for three consecutive days. The Veteran testified that during that period of time, the communications would be jammed with tones of different frequencies and intensity into the headsets for the entirety of the 8-hour shift. The Veteran testified that the war games intensified after the Cuban Missile Crisis. In July 2017, the Veteran submitted a private medical opinion from Dr. L.C., who found that the Veteran’s current hearing loss was at least as likely as not caused by or a result of his noise exposure while in the Air Force. Based on the specific facts in this case, the Board finds that the evidence is in equipoise. There is both positive and negative evidence of record. As such, all reasonable doubt is resolved in the Veteran’s favor. The Board finds that the Veteran has in-service noise exposure, a currently diagnosed bilateral ear hearing loss disability for VA benefit purposes, limited civilian noise exposure, and there is competent and credible lay and medical evidence indicating ongoing hearing problems since service. Service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is due to his exposure to acoustic trauma while in service. Tinnitus that has been diagnosed on the basis of extended exposure to loud noise and consequent injury (acoustic trauma) is considered by law to be a chronic organic disease of the nervous system. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Because tinnitus, as an organic disease of the nervous system, falls within the scope of 38 C.F.R. § 3.309(a), a showing of continuity of symptoms under § 3.303(b) may be substituted for evidence otherwise required by § 3.303(a). As an initial matter, the Board notes that tinnitus is a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). As the Veteran has offered competent descriptions of experiencing tinnitus throughout the appeal, and the Board has no reason to doubt his credibility in this regard, the Board finds that he has a current diagnosis of such disorder. As noted above, significant noise exposure during military service has been conceded. See October 2012 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire. Additionally, the Veteran testified that his tinnitus began in service. See December 2019 Hearing Transcript. The October 2012 and July 2016 VA examiners opined that the Veteran’s recurrent tinnitus was less likely due to service. The reasoning was no hearing loss was incurred as a result of military service and there was no documentation of tinnitus in the Veteran’s service treatment records. In July 2017, Dr. L.C. opined that the Veteran’s tinnitus was at least as likely as not caused by or a result of his noise exposure while in the Air Force. Upon review of the record, the Board finds that the Veteran’s statements are competent, as he reported observable symptoms that he experienced. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board also acknowledges the Veteran’s military occupation specialty as a weapons controller technician and noise exposure and his competent lay assertions of experiencing tinnitus since service. The Board finds the Veteran’s own reports of experiencing ringing of the ears to be at least as probative as the above-noted VA examiners’ findings. The Board also finds the opinion of Dr. L.C. to be probative. As such, in this case, the Board finds that the evidence is in equipoise. Therefore, after resolving doubt in the Veteran’s favor, given the history of noise exposure during service and the Veteran’s lay statements, service connection for tinnitus is warranted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.