Citation Nr: 21004794 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 20-04 887 DATE: January 28, 2021 ORDER The appeal to reopen the claim of service connection for bilateral hearing loss is granted. The appeal to reopen the claim of service connection for bilateral tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. An unappealed March 2016 rating decision denied service connection for bilateral hearing loss and bilateral tinnitus. 2. Evidence received since the March 2016 rating decision that denied claims of service connection for bilateral hearing loss and bilateral tinnitus is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss disability is likely related to active military service. 4. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is likely related to active military service. CONCLUSIONS OF LAW 1. The March 2016 rating decision that denied service connection bilateral hearing loss and bilateral tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has been received sufficient to reopen the issues of service connection for bilateral hearing loss and bilateral tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for tinnitus are met. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1963 to April 1965. This appeal comes to the Board of Veterans’ Appeals (Board) from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. 1. Whether new and material evidence has been received sufficient to reopen the claims of entitlement to service connection for bilateral hearing loss and bilateral tinnitus. The Veteran’s claims for service connection for bilateral hearing loss and bilateral tinnitus were denied initially by a March 2016 rating decision based on a finding that there was no nexus between the Veteran’s hearing loss and tinnitus disabilities and active duty service. Specifically, the RO found that the Veteran’s service treatment records (STRs) were silent regarding any active duty treatment for hearing loss or tinnitus that acoustic trauma was not shown by the evidence of record. The Veteran did not appeal the March 2016 rating decision nor was new and material evidence received within one year of that decision. Therefore, it is final. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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 Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Evidence received since the March 2016 rating decision includes VA treatment records, the Veteran’s lay statements both in writing and at hearing contending that his bilateral hearing loss and tinnitus resulted from acoustic trauma while serving in an artillery unit and documentation regarding the lack of hearing protection during active duty. This evidence is new in that it has not been previously submitted. It is also material insofar as it presents new and heretofore unestablished facts relevant to substantiating the claim. As this additional evidence is both new and material, the claims for entitlement to service connection for bilateral hearing loss and bilateral tinnitus are reopened. Service Connection Service connection may 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 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A hearing loss disability for VA compensation purposes is defined by regulation as impaired hearing when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Once the requirements of 38 C.F.R. § 3.385 have been met and a present hearing disability under applicable VA laws and regulations is found, a determination must be made as to whether the current hearing disorder is related to service. Even if a veteran does not have a hearing loss disability for VA compensation purposes recorded during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present hearing loss disability to service. The threshold for normal hearing is 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155 (1993). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for bilateral hearing loss and bilateral tinnitus. The Veteran contends that his bilateral hearing loss and tinnitus result from hazardous noise exposure in active service. He seeks service connection. The Veteran’s military occupational specialty (MOS) as listed on his DD Form 214 was field artillery missile crewman. In a June 2020 Statement in Support of Claim and in hearing testimony, the Veteran indicated that he has experienced hearing loss and tinnitus since separation as a result of acoustic trauma during active duty in the performance of his MOS duties. In addition, the Veteran noted that no hearing protection was made available to him. See VA Form 9. The Veteran is competent to assert the occurrence of an in-service injury, to include in service noise exposure. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Moreover, the Board finds that the Veteran’s assertions of being exposed regularly to hazardous noise are credible, consistent with the circumstances of his service and not contradicted by the competent evidence of record. See 38 U.S.C. § 1154 (a). The Veteran’s service treatment records (STRs) and military personnel records are silent for any documentation that during active duty the Veteran was issued and required to wear hearing protection. Accordingly, the Board finds that the Veteran was likely exposed to hazardous noise in service. The Veteran has current hearing loss and tinnitus disabilities. In May 2018, the Veteran underwent a VA audiological examination to assess the nature and etiology of his bilateral hearing loss and tinnitus. The VA examiner diagnosed bilateral sensorineural hearing loss and tinnitus consistent with VA disability parameters. With regard to the question of nexus, the Board finds that this element is met. In that regard, throughout the appeal period, the Veteran has consistently asserted that his bilateral hearing loss and tinnitus started in service. See January 2021 Board Hearing Transcript and June 2020 Statement in Support of Claim. Such statement suggests a continuity of relevant symptomatology since service. The Board notes that the Veteran is competent to report symptoms of hearing loss and tinnitus since service and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board acknowledges the negative nexus opinion provided by the May 2018 and March 2016 VA examiners, who opined that both disabilities were less likely than not caused by or a result of an event in military service. The rationale for the negative nexus opinion pertaining to bilateral hearing loss was that the Veteran had normal hearing sensitivity in audiograms conducted as enlistment and separation with no significant threshold shifts. The rationale for the examiner’s negative nexus opinion pertaining to bilateral tinnitus was that the Veteran reported the onset of his tinnitus in 1969 or 1970 some 4 or 5 years after active duty, which was long after his service. The examiner indicated that it is widely accepted that noise – induced tinnitus occurs at the time of noise exposure and does not develop years later. As the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. The Board finds that the VA examiner’s the nexus opinion is of little probative value. Notably the VA examiner did not specifically address the Veteran’s lay reports of exposure to artillery as the cause of hearing loss and tinnitus. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (VA opinion found to be inadequate where examiner ignores lay statements). Moreover, the examiner failed to acknowledge any acoustic trauma and provide reasoning as to whether either his current bilateral hearing loss or tinnitus are causally related to in service hazardous noise exposure. See Hensley v. Brown, 5 Vet. App. 155 (1993). After a careful review of the competent and credible evidence of record including the Veteran’s lay statements of continuity of symptomatology, the acknowledged in-service noise exposure, the current finding of bilateral hearing loss for VA purposes, and resolving reasonable doubt in favor of the Veteran, the Board finds that his bilateral hearing loss and tinnitus is as likely as not causally related to noise exposure during active service and his claim on appeal is allowed. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.