Citation Nr: 20028851 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 20-07 007 DATE: April 24, 2020 ORDER New and material evidence having been received, entitlement to service connection for tinnitus is reopened. New and material evidence having been received, entitlement to service connection for bilateral hearing loss is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The evidence added to the record since the June 2008 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus, raises a reasonable possibility of substantiating the claim. 2. The evidence added to the record since the June 2008 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss, raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during active service. CONCLUSIONS OF LAW 1. The June 2008 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2019). 2. Evidence received since the last final denial on the issue of service connection for tinnitus is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2019). 3. Evidence received since the last final denial on the issue of service connection for bilateral hearing loss is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2019). 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1965 to January 1969. The case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office. New and Material Evidence The Veteran's claim for service connection for bilateral hearing loss and tinnitus was originally denied in a June 2008 rating decision as no hearing loss for VA purposes was found during a March 2008 VA examination, which also found that service connection for tinnitus was not warranted after noting possible post-service noise exposure. The Veteran did not appeal this decision, nor did VA actually or constructively receive any new and material evidence within a year following notification; therefore, the decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 3.156(b), 20.302, 20.1103. 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. Id. 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 the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). Regardless of the RO's determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). 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. 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. Here the Veteran has submitted a lay statement in February 2020 that hearing loss protection in-service was not adequate and the Veteran’s representative raised a contention that National Institutes of Health regarding the ‘Impact of noise on hearing in the military,’ should be considered. The Board finds that this evidence is new and material to the case at hand and therefore finds that the Veteran's claims for service connection for tinnitus and bilateral hearing loss is reopened. Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as sensorineural hearing loss or tinnitus (i.e., organic disease of the nervous system), may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, with chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of an evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that as an alternative to the nexus requirement, service connection for a chronic disease listed under 3.309(a) may be established through a showing of continuity of symptomatology since service). In each case where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, and the Veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board.”). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is related to unprotected noise exposure while serving on active duty in the United States Air Force. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or within 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). As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus as such disorder can be identified through lay observations alone and he has offered competent and credible descriptions of experiencing tinnitus throughout the pendency of his claim. See Charles v. Principi, 16 Vet. App. 370 (2002). VA examinations conducted in March 2008 and July 2018 found that the Veteran’s tinnitus was less likely than not connected to his active duty service, primarily due to the lack of significant threshold shifts in his enlistment and separation examinations. However, considering the Veteran’s lay statement regarding the symptoms of tinnitus he experiences such as pain and ringing and his MOS as a jet engine mechanic, the Board finds his subjective statements to be credible and competent to support his claim for tinnitus. See February 2020 lay statement. In this regard, 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. Charles, supra. Therefore, the Board resolves all doubt in favor of the Veteran and finds that his currently diagnosed tinnitus had its onset during his active duty service. Consequently, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is caused as a result of noise exposure he experienced while serving on active duty in the United States Air Force and that his hearing is worse in the last 11 years. A review of the Veteran’s service treatment records (STRs) show that Veteran’s hearing examinations conducted during enlistment and separation from active duty reveal that his hearing was within normal limits. Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the 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. A VA audiological examination was conducted in March 2008. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 20 20 20 LEFT 20 20 20 20 20 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 98 percent in the left ear. The pure tone threshold and speech audiometry did not satisfy the criteria under 38 C.F.R. § 3.385. Thus, the Veteran did not have impaired hearing for VA purposes during the March 2008 VA audiological examination. The March 2008 VA examiner noted that the Veteran had a history of occupational noise exposure as a machinist in an oil refinery for twenty years and nearly ten years of noise exposure from a generator station with the use of hearing protection. The Veteran submitted a private audiological examination in May 2018, pure tone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 30 22 25 LEFT 20 25 30 32 35 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 92 percent in the left ear. The pure tone threshold and speech audiometry for the left ear satisfied the criteria under 38 C.F.R. § 3.385. Thus, May 2018 private examination showed that the Veteran has hearing loss for VA purposes in the left ear. On the authorized VA audiological evaluation in July 2018, pure tone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 25 25 25 LEFT 10 20 25 25 25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear. The pure tone threshold and speech audiometry results did not satisfy the criteria under 38 C.F.R. § 3.385. Thus, the record shows that the Veteran did not have impaired hearing for VA purposes during the July 2018 VA examination. During the July 2018 VA audiological examination, the examiner found no permanent positive threshold shifts after examining both ears. After reviewing the Veteran’s claims file and noting the Veteran’s military occupational specialty (MOS) as a jet engine mechanic and the contentions raised by the Veteran, including the previous VA examination conducted in March 2008, the examiner opined that his hearing loss is less likely than not caused by, or a result of an event in military service. The Veteran’s representative submitted an Informal Hearing Presentation (IHP) in April 2020 and argued that service connection should be granted based on the results of the private audiological examination submitted by the Veteran in May 2018 and that the VA examiners failed to consider the Veteran’s lay statements and therefore inadequate. The representative also contends that VA examiners should have considered evidence from a triste from the National Institutes of Health regarding the ‘Impact of noise on hearing in the military.’ The representative also add that the Veteran’s report of inadequate haring protection should have also been considered. As new contentions are raised by the Veteran’s representative, the Board finds that a VA addendum audiological examination is necessary. Accordingly, the matter is REMANDED for the following action: 1. Return the claims file to the same examiner who conducted the July 2018 bilateral hearing loss examination. The claims file and a copy of this Remand must be made available to the examiner and the examiner should note in the examination report that the claims folder and the Remand have been reviewed. If that examiner is unavailable, the claims file and a copy of this Remand should be forwarded to another appropriate medical professional for the requested addendum opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. 2. The examiner should respond to the following: Is it as least as likely as not (50 percent probability or greater) that the Veteran’s bilateral hearing loss had its onset in or is otherwise etiologically related to active duty service? Please explain why or why not. In rendering the requested opinion, the examiner should review the March 2008, July 2018 VA examinations and May 2018 private audiological examination and discuss the Veteran’s lay statements of record, noting his MOS as a jet engine mechanic and the contentions raised by the Veteran’s representative in the April 2020 Informal Hearing Presentation regarding the National Institutes of Health study titled ‘Impact of noise on hearing in the military’ (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4455974), and that hearing protection in-service was inadequate as raised in the Veteran’s February 2020 lay statement, while also discussing his noise exposure post-service in civilian positions. 3. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, Associate Counsel 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.