Citation Nr: 21001168 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-09 300 DATE: January 7, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is etiologically related to his time in active service. 2. The Veteran’s tinnitus is etiologically related to his time in active service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1943 to February 1946. He appeals a September 2015 rating decision by the Agency of Original Jurisdiction (AOJ) denying his claims of entitlement to service connection for bilateral hearing loss and tinnitus. See October 2015 Notice of Disagreement (NOD). A Board hearing was held in July 2020. A transcript is of record. At the outset, the Board notes that the RO characterized the Veteran’s claim for hearing loss as a petition to reopen a previously denied claim. However, the Board finds that the pending claim is a continuation of the Veteran’s original claim. In this regard, the Veteran filed an initial claim for service connection for hearing loss in November 2006, which was denied in a September 2007 rating decision. The Veteran did not file a notice of disagreement, but in November 2007 he submitted new evidence. See November 2007 Dr. W.G.R. Medical Opinion. New and material evidence received prior to the expiration of an appeal period (one year for a rating decision and 60 days for a statement of the case) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). To comply with the directive of 38 C.F.R. § 3.156 (b), VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 367 (2011). Until VA has evaluated the relevancy of the new evidence, the initial claim remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1407 (2014). The Board finds that the AOJ did not evaluate the materiality of the new November 2007 evidence until it issued a rating decision in September 2015. The September 2015 rating decision was timely appealed. Therefore, in accordance with the Federal Circuit’s holdings in Bond and Beraud, the Board finds that the July 2007 rating decision was pending at the time the Veteran submitted his October 2015 notice of disagreement. Therefore, the Board need not address whether new and material evidence has been submitted to reach the merits of the claim Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303 (d). Under 38 C.F.R. § 3.303 (b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309 (a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Hearing loss and tinnitus have been interpreted as such diseases. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). 1. Hearing Loss The first two Shedden elements are met. The Veteran has bilateral hearing loss for VA purposes. See August 2015 VA examination report. Additionally, the Board finds that the Veteran was exposed to loud noise in service while stationed on Navy ships. See July 2020 hearing transcript at 3. Therefore, the fundamental factual dispute in this case is whether the Veteran’s loud noise exposure in service caused his bilateral hearing loss. The Veteran submitted a November 2007 private medical opinion from Dr. W.G.R. Dr. W.G.R. opined that the Veteran’s hearing loss was due to excessive noise exposure. See November 2007 Dr. W.G.R. medical opinion. Additionally, the Veteran submitted a July 2020 private medical opinion by Dr. E.Q. He stated that the Veteran has had hearing loss for several years and it is getting worse. The Veteran reported a history of being on the U.S.S. West Virginia working next to naval gunfire. The Veteran stated he was not prewarned about the firing of guns when they were being fired on during WWII and was not wearing hearing protection. Dr. E.Q. ultimately opined that this most likely contributed to his hearing loss. See July 2020 Dr. E.Q. medical opinion. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt and finds there is evidence of record establishing a link between the Veteran’s noise exposure in service and his bilateral hearing loss. Accordingly, the Board finds that a grant of service connection is warranted for bilateral hearing loss. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Tinnitus The first two Shedden elements are met. The Veteran credibly reported that he has ringing in his ears. See July 2020 hearing transcript at 5. Additionally, as stated above, the Board finds that the Veteran was exposed to loud noise in service while stationed on Navy ships. See July 2020 hearing transcript at 3. Therefore, the fundamental factual dispute in this case is whether the Veteran’s loud noise exposure in service caused his tinnitus. The Board notes that the record does not contain a nexus opinion directly related to the etiology of the Veteran’s tinnitus. Despite neither Dr. W.G.R. nor Dr. E.Q. addressing the Veteran’s competent and credible reports of his ringing in his ears, the Board finds that common sense would dictate that his current tinnitus is related to the same noise exposure these medical professionals have deemed to be the cause of his bilateral hearing loss. As such, it follows that the Veteran’s tinnitus is due to his noise exposure during service. No other cause for the Veteran’s tinnitus has been suggested by the record. Therefore, as the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt and finds there is evidence of record establishing a link between the Veteran’s noise exposure in service and his tinnitus. Accordingly, the Board finds that a grant of service connection is warranted for tinnitus. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.