Citation Nr: 21000685 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-67 268 DATE: January 5, 2021 ORDER As new and material evidence has been received, the previously denied claim of service connection for tinnitus is reopened. As new and material evidence has been received, the previously denied claim of service connection for hearing loss is reopened. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. In a December 2011 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s request to reopen his previously denied claim of service connection for bilateral hearing loss and tinnitus; this decision was not appealed and became final. 2. The evidence received since the December 2011 rating decision is new and material for both claims. 3. Affording the Veteran the benefit of the doubt, his tinnitus is etiologically attributable to acoustic trauma he experienced during his active duty military service. CONCLUSIONS OF LAW 1. The December 2011 rating decision, which denied the Veteran’s request to reopen his previously denied claim of service connection for tinnitus, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2019). 2. Evidence received since the December 2011 rating decision in support of the claim of service connection for tinnitus is new and material; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The December 2011 rating decision, which denied the Veteran’s request to reopen his previously denied claim of service connection for bilateral hearing loss, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2019). 4. Evidence received since the December 2011 rating decision in support of the claim of service connection for hearing loss is new and material; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 5. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 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 from September 1960 to June 1965. 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). 1. New and material evidence to reopen a claim of service connection for tinnitus. 2. New and material evidence to reopen a claim of service connection for bilateral hearing loss. The Veteran seeks to reopen claims of entitlement to service connection for tinnitus and hearing loss. The claims was most recently denied in a December 2011 rating decision that declined to reopen the claims. The claims had initially been denied because there was no nexus. The Veteran did not initiate an appeal of that decision or submit new and material evidence within one year and the decision became final. The Veteran filed a claim to reopen service connection for tinnitus and hearing loss in March 2017. In the August 2017 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) reopened the claims, however continued the denial issued in the final prior rating decision. Despite the AOJ’s actions, the Board has an obligation to make an independent determination of its jurisdiction. Barnett v. Brown, 8 Vet. App. 1 (1995). Evidence added to the record since the December 2011 decision includes VA and private treatment records; two medical journal articles regarding auditory injuries; statements from the Veteran and several service buddies, and; testimony at the October 2020 hearing before the undersigned. The Board finds that the additional evidence submitted since December 2011, specifically the journal articles, relates to an unestablished fact; nexus to service. Shade v. Shinseki, 24 Vet. App. 110 (2010). The claims for service connection for tinnitus and hearing loss are reopened. 3. Entitlement to service connection for tinnitus The Veteran contends that he is entitled to service connection for tinnitus as the result of acoustic trauma suffered in service. He contends that he was exposed to extreme noise while working on an active flight line as a mechanic, as well as the toxic effects of jet fuel on his auditory system. The Veteran's DD-214 shows that his military occupational specialty (MOS) was a jet engine mechanic. The Veteran has stated that his service duties resulted in his close proximity to loud noises while in service. Based on this evidence and the Veteran's testimony of noise exposure, noise exposure in service is conceded. An October 2011 VA examination noted the Veteran's report that he was experiencing tinnitus but was unsure when symptoms began. The Veteran observed that his tinnitus was more noticeable at the October 2011 examination than when he was tested in 2006. The examiner’s negative etiological opinion is inadequate because they did not address the Veteran’s MOS and whether the tinnitus was directly related to the conceded noise exposure. The Veteran submitted a personal statement describing the maintenance work he performed on an active flight life, which included standing “twelve inches from the prop and six inches from the engine as it was running.” See Veteran's Correspondence received October 2017. The Veteran has also submitted a statement from his daughter J.S., reporting that her father has complained about “constant ringing” in his ears for over 40 years. See March 2017 Statement. A March 2017 private examination noted the Veteran’s tinnitus and noise exposure, but did not include any opinion on the etiology of the Veteran’s tinnitus. In October 2018 argument, the Veteran’s representative referenced two medical journal articles regarding auditory injuries. A journal article from the National Institutes of Health (NIH) addressed the implications for hearing and tinnitus given delayed onset after noise exposure. See National Institutes of Health, Noise and Military Service (2006). A second journal article addressed the auditory effects of occupational exposure to jet fuel. See Journal of Occupational and Environmental Medicine, Effects of Concurrent Noise and Jet Fuel Exposure on Hearing Loss (2005). The Veteran testified in an October 2020 BVA Hearing that while he does not recall the exact date he first noticed his tinnitus, he has experienced symptoms since his early 40’s (the Veteran is currently 79). The Veteran testified that during service he was only provided with minimal hearing protection despite the hazardous noise exposure of an active flight line. The Veteran also testified that he was not exposed to hazardous noise after service. Affording the Veteran the benefit of the doubt, the Board concludes that he has a current diagnosis of tinnitus that resulted from acoustic noise exposure during active duty service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). 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). The Board finds the Veteran credible regarding his claim that he experiences symptoms of tinnitus. See Charles, 16 Vet. App. at 370. The Board also finds the Veteran’s in-service noise exposure caused the Veteran’s delayed onset tinnitus. The October 2011 VA opinion is not dispositive because that examiner did not comment on whether the tinnitus was affected by the extreme noise of an active flight line, given the Veteran’s MOS. Entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for hearing loss is remanded. The claim is remanded for an adequate nexus opinion. The negative October 2011 VA opinion did not consider the Veteran’s MOS and whether the in-service noise exposure was directly related to the Veteran’s hearing loss. In March 2017, the Veteran underwent a private audiological examination. Although the puretone threshold test showed hearing loss, the examination was inadequate because it did not include any rationale or Maryland CNC word recognition test. See 38 C.F.R. § 4.85(a). Therefore, the Veteran should be afforded a VA examination to determine the etiology and extent of his bilateral hearing disability. 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician on the likely etiology of the Veteran’s hearing loss. Copies of all pertinent records must be made available to the examiner for review. Based on a review of the record, the examiner must answer the following: Is it at least as likely as not (50 percent probability) that the Veteran’s hearing loss disability was incurred in or is otherwise related to service, to include conceded in-service noise exposure to active flight line? In providing the opinion, the examiner must specifically consider and address (i) the National Institutes of Health, Noise and Military Service (2006); (ii) Journal of Occupational and Environmental Medicine, Effects of Concurrent Noise and Jet Fuel Exposure on Hearing Loss (2005); (iii) Veteran's Correspondence received October 2, 2017; (iv) March 2017 Buddy Statements from J.S., P.M., L.R., B.R., R.S., R.M., M.R., and M.J. (v) October 2020 BVA Hearing. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.E. Bresler, 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.