Citation Nr: 21002608 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-28 882A DATE: January 14, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for tinnitus is reopened. 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 claim for service connection for tinnitus was initially denied in a July 2006 Board decision on the basis that the Veteran’s tinnitus was not related to his active service. 2. Evidence received since the July 2006 Board decision presents a reasonable possibility of substantiating his claim for service connection. 3. The weight of the evidence is at least in relative equipoise as to whether the Veteran has bilateral hearing loss and tinnitus that are related to his active service. CONCLUSIONS OF LAW 1. New and material evidence having been presented, the Veteran’s claim for service connection for tinnitus is reopened. 38 C.F.R. § 3.156 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from August 1955 to July 1959. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a February 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). Service Connection 1. New and material evidence having been presented, the claim for entitlement to service connection for tinnitus is reopened. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. The Veteran is seeking service connection for bilateral hearing loss and tinnitus. The Board will discuss the claims of bilateral hearing loss and tinnitus together because they arise from the same facts and circumstances. Before turning to that analysis, the Board notes that the Veteran’s claim for service connection for tinnitus was previously denied by the Board in a July 2006 decision. As the Veteran did not appeal that decision, it became final. As the Veteran has submitted new and material evidence in the form of a medical nexus opinion (as discussed below), the claim is reopened. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Here, the Veteran contends that he currently suffers from bilateral hearing loss and tinnitus that are related to his active service. For the reasons that follow, his claim shall be granted. First, both VA and private treatment records clearly demonstrate that the Veteran has been diagnosed as suffering from hearing loss for VA purposes and tinnitus. As to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, review of the Veteran’s service treatment records revealed that the Veteran had normal hearing at discharge from military service. However, the Veteran contends that he was exposed to hazardous noise during service due to being assigned to “man the forward gun without ear plugs or other hearing protection and that he fired the 20 mm machine gun aboard the Pandora. The Board notes that the Veteran is competent to give evidence about what he experienced, and exposure to noise is subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Moreover, the Board notes that the exposure to hazardous noise is consistent with the Veteran’s active duty service. The Veteran also testified that his tinnitus began during service. Therefore, the Veteran was exposed to loud noise during service, and the in-service incurrence criterion is met. The Veteran has submitted the October 2016 private medical opinion from Dr. L.J. Waizenegger. Dr. Waizenegger concluded that the Veteran’s bilateral hearing loss and tinnitus were related to his active service, writing that the Veteran’s current bilateral hearing loss and tinnitus consistent with the Veteran’s report of hazardous noise exposure during his active service. As such, the preponderance of the evidence is for finding that bilateral hearing loss and tinnitus was caused related to his active duty service, and service connection is granted. See 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1338. Thus, the claims for service connection are granted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Higgins, 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.