Citation Nr: 21002998 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-22 437 DATE: January 19, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. New and material evidence having been received, the claim of entitlement to service connection for bilateral tinnitus is reopened. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. FINDINGS OF FACT 1. The Regional Office originally denied entitlement to service connection for bilateral hearing loss and bilateral tinnitus in a July 2014 rating decision. The Veteran initially appealed the decision, but subsequently withdrew the appeal prior to the issue being submitted to the Board. 2. Evidence received since the July 2014 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for bilateral hearing loss and bilateral tinnitus. 3. The probative evidence of record is at least in relative equipoise that the Veteran’s bilateral hearing loss originated in service or is otherwise attributable to his active duty service. 4. The probative evidence of record demonstrates that the Veteran’s bilateral tinnitus is related to his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The July 2014 rating decision that denied entitlement to service connection for bilateral hearing loss and bilateral tinnitus is final. 38 U.S.C. § 7105 (c); 38 U.S.C. § 20.1103. 2. New and material evidence has been received sufficient to reopen the claims of entitlement to service connection for bilateral hearing loss and for bilateral tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from September 1972 to September 1976. In November 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. The Board notes that additional, relevant evidence has been added to the claims file since the issuance of the statement of the case in March 2017. Typically, a waiver of RO consideration of the new evidence would be appropriate under these circumstances. However, as the Board is granting the claims herein, such a waiver is unnecessary. New and Material Evidence In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). The Regional Office originally denied the Veteran’s claims of entitlement to service connection for bilateral hearing loss and bilateral tinnitus in a July 2014 rating decision. The Veteran initially appealed the denial, but the decision became final after the Veteran withdrew his appeal in April 2015 prior to the appeal being sent to the Board. The Veteran subsequently filed a claim to reopen the issue, and, in May 2016, the Regional Office denied the claim. The Veteran appealed. Regardless of the Regional Office’s determination regarding whether new and material evidence has been submitted, 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 claim and to adjudicate the claim de novo. 1. New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is reopened. 2. New and material evidence having been received, the claim of entitlement to service connection for bilateral tinnitus is reopened. In the July 2014 rating decision, the Regional Office denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss because it found that the evidence of record did not establish a nexus between the Veteran’s diagnosed bilateral hearing loss and his military service. It denied the Veteran’s claim of entitlement to service connection for bilateral tinnitus because it found that the evidence of record did not establish a nexus between the Veteran’s diagnosed bilateral tinnitus and military service, and was more likely than not related to his non-service-connected bilateral hearing loss. Evidence received since the July 2014 rating decision includes the November 2020 hearing testimony. The Board finds that the evidence is “new” in that it was not before agency decision makers at the time of the July 2014 final denials of the claims for service connection. It is also not duplicative or cumulative of evidence previously of record. Specifically, it provides the Veteran’s testimony regarding his in-service duties and the purported onset of his disabilities. The evidence is new, material, and raises a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that the criteria for reopening the service connection claims are met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Chronic diseases, such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated during service if manifested to a compensable degree (10 percent) within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 1 Vet. App. 439 (1995). To establish secondary service connection, there must be (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for bilateral hearing loss is granted. The Veteran seeks entitlement to service connection for bilateral hearing loss. He maintains that his bilateral hearing loss had its onset during his active military service due to exposure to hazardous noise. The VA audiological examination conducted in June 2014 shows a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Thus, the first element of entitlement to service connection has been satisfied. Further, the Veteran’s military personnel records show that he was an aircraft structural mechanic and a marksmanship instructor. As such, the Board has no reason to dispute his credible reports of in-service noise exposure, as his service in an aviation unit would reasonably include exposure to loud noises. See 38 U.S.C. § 1154 (a). Accordingly, the Board finds that the Veteran was exposed to noise during his active duty service, and the second element has been satisfied. The Board now turns to the issue of whether there is a nexus between the Veteran’s bilateral hearing loss and his in-service noise exposure. The only medical opinion of record follows the June 2014 VA audiological examination. A VA examiner determined that it was less likely than not that the Veteran’s diagnosed bilateral hearing loss was the result of military noise exposure. The examiner noted the Veteran’s reports of military and post-military noise exposure. She then discussed the Veteran’s in-service complaints of earaches from wax or otitis externa but observed that all audiograms revealed hearing within normal limits in both ears, with no significant threshold shifts from enlistment to separation. The examiner indicated that the audiogram was the objective standard for noise injury and with no significant threshold shift, there was no noise injury. She cited an Institute of Medicine Study which found that there was an insufficient scientific basis given the current understanding of auditory physiology to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. Thus, given the absence of significant threshold shifts during military service, she concluded that it was less likely than not that the Veteran’s hearing loss was caused by or a result of military service, including noise exposure. The Board finds that the June 2014 VA medical opinion is inadequate to decide the claim. In particular, the VA examiner based the negative etiological opinion solely upon the lack of evidence of complaints of or treatment for auditory symptoms in the Veteran’s service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion). In this regard, the absence of evidence of an auditory pathology in the service treatment records does not preclude service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). Additionally, the July 2014 opinion appears to be underpinned by the determination that the Veteran’s report of a delay in the onset of his auditory symptoms favor an intercurrent, post-service cause of the bilateral hearing loss and tinnitus. In this regard, the Board observes that Court of Appeals for Veterans Claims (Court) has recently directed attention to an Institute of Medicine (IOM) report on delayed onset hearing loss. The Court found that while the report states that “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report’s findings pertinent to the matter. The Court provided that while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (IOM report at 203-04). The Court has directed attention to the fact that the IOM report’s language may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss such that a VA examiner’s citation of the report should contemplate to all of the pertinent aspects of its findings. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). The Board could remand this issue for an additional opinion. However, this is unnecessary because the probative evidence reveals a currently diagnosed hearing loss disability for VA purposes, establishes in-service noise exposure based on the Veteran’s military operational specialty, and the Veteran competently and credibly testified regarding the inadequacy of the hearing protection used in service (he described still being able to hear the high pitched noise of jet engines), that he first noticing hearing difficulties at separation or soon thereafter, and that in his post-service work in law enforcement he used adequate hearing protection on the intermittent occasions when he had to qualify on the gun range. 38 C.F.R. § 3.159 (c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Thus, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss is related to service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for bilateral tinnitus is granted. The Veteran seeks entitlement to service connection for bilateral tinnitus. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is “subjective,” as its existence is generally determined by whether the Veteran claims to experience it. 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). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. As the Veteran has competently and credibly reported experiencing tinnitus since service, the first element of service connection is met. As previously discussed, the Board finds that the Veteran was exposed to noise during his active duty service, and the second element has been satisfied. The Board now turns to the issue of whether there is a nexus between the Veteran's tinnitus and in-service noise exposure. The only medical opinion of record follows the June 2014 VA audiological examination. A VA examiner determined that the Veteran’s bilateral tinnitus was at least as likely as not a symptom associated with his bilateral hearing loss, as tinnitus is a known symptom associated with hearing loss. As the Veteran’s bilateral hearing loss disability has been service-connected herein, the Board finds that service connection for tinnitus is appropriate. See 38 C.F.R. § 3.310. Accordingly, service connection for bilateral tinnitus is granted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.