Citation Nr: 21061828 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-64 700 DATE: October 5, 2021 ORDER New and material evidence has been received to reopen a service connection claim for bilateral hearing loss. New and material evidence has been received to reopen a service connection claim for tinnitus. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In an unappealed April 2015 rating decision, the RO denied the claims of service connection for bilateral hearing loss and tinnitus. 2. The evidence received since the last final April 2015 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claims on appeal. 3. The Veteran has been diagnosed with a bilateral hearing loss disability and tinnitus. 4. In conjunction with his duties associated with his military occupational specialty (MOS), the Veteran was exposed to military noise while in service. 5. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss and tinnitus are at least as likely as not related to military noise exposure in service. CONCLUSIONS OF LAW 1. The April 2015 rating decision that last denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The April 2015 rating decision that last denied service connection for tinnitus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been received to reopen the claim of service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 6. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to September 1978. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified before the undersigned Veterans Law Judge in a virtual hearing. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "New" evidence is defined as existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in the April 2015 rating decision, the RO, as pertinent here, denied the Veteran's claim for service connection for bilateral hearing loss and tinnitus. The Veteran appealed the decision but did not file a VA Form 9 within the prescribed period. Thus, the decision became final. 38 C.F.R. § 20.1103. More than one year later, the Veteran filed a new claim for service connection for bilateral hearing loss and tinnitus in June 2016 accompanied by a statement in support of claim which requested to withdraw the notice of disagreement and for the RO to reconsider the claims. The evidence submitted with the request included an April 2016 private medical opinion. In September 2016, the RO denied the claim finding no new and material evidence had been submitted on which to reopen the claim. The April 2016 private medical opinion was not listed as evidence considered in the rating decision. In March 2017, the Veteran submitted a second request for reconsideration, arguing that the RO failed to consider the private medical opinion. The RO again denied reopening in April 2017, this time addressing the private medical opinion but finding it was not material. The Veteran timely filed a notice of disagreement and VA Form 9. Based on the procedural history of the case, the last final decision for both claims was the April 2015 rating decision. The evidence of record at the time of the April 2015 rating decision consisted of the Veteran's service treatment records, DD Form 214, August 2014 private audiology report, VA treatment records from April 2004 to April 2015, and the April 2015 VA examination report. Subsequent to the April 2015 rating decision, evidence added to the claims file includes correspondence from the Veteran, VA treatment records, and the April 2016 and November 2017 private medical opinions, both which opined that the Veteran's hearing loss and tinnitus were related to service. Additional evidence received since the prior final denial, particularly the April 2016 and November 2017 private medical opinions, speak to the question of whether the Veteran's disabilities are related to service. The Board notes the analysis by the RO in the April 2017 rating decision in finding that the private medical opinion was not material was incorrect as a matter of law. The Court in Shade v. Shinseki, found that 38 C.F.R. §§ 3.156 did not add a third element that the new and material evidence must also raise a reasonable possibility to substantiate the claim in order to reopen a claim, but "Rather, that phrase provides guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements." Shade, 24 Vet. App. at 117. The Court continued, stating, "VA in writing the words of its regulation could not have intended a reading of § 3.156(a) and § 3.159 that, after the claimant has met the requirement of submitting evidence that is both new and material, would deny reopening because an adequate medical nexus opinion was not provided by the claimant." Id. at 118. Thus, the question before the RO was not whether the private medical opinion was competent and credible and did in fact substantiate the claim but whether the private medical opinion was new and material, with consideration given to whether the evidence had a reasonable possibility of substantiating the claim. Accordingly, the Board finds new and material evidence was received, and the claims for service connection for bilateral hearing loss and tinnitus are reopened. Service Connection Laws and Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is competent to report the onset and continuity of his or her current symptomatology, to include reduced hearing acuity. See Layno, 6 Vet. App. 469- 470 (a Veteran is competent to report on that of which he or she has personal knowledge). In addition, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that his bilateral hearing loss and tinnitus are related to military noise exposure in conjunction with his MOS as an avionics sensor system specialist. See December 2017 VA Form 9. Viewing the evidence in the light most favorable to the Veteran, and the providing the benefit of the doubt, the Board finds the evidence is at least in equipoise as to whether the Veteran's hearing loss and tinnitus are related to service. Thus, service connection for both claims is warranted. For VA compensation purposes, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; (2) the auditory thresholds for at least three of these frequencies are 26 dB or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As initial matter, the Veteran has sensorineural hearing loss in both ears that meets the criteria of 38 C.F.R. § 3.385 and tinnitus. See April 2015 VA Examination Report. Therefore, the first element of service connection for both claims are met. In regard to an in-service injury, the Board recognizes that the Veteran was exposed to military noise in service. The Veteran's DD Form 214 reflects that his MOS was that of an avionics sensor system specialist, which has a high probability of noise exposure. The Veteran testified in his September 2021 hearing that he worked on the flight line and would preflight the aircraft then go back to the shop at the end of the runway. The Veteran also stated the noise and pressure would blow open the steel doors when an aircraft landed. In addition, the Veteran stated he worked on aircraft while they were running. The Board has no reason to doubt the competency or credibility of the Veteran's statements. As such, military noise exposure in service is recognized and the second element of service connection is met. As such, the claims hinge on whether there is evidence of nexus between the current disabilities and in-service military noise exposure. Evidence against the claim includes an April 2015 VA medical opinion, authored by an audiologist, which opined that the Veteran's hearing loss and tinnitus were not related to service as there was no significant shift in hearing thresholds greater than normal measurement variability from enlistment to separation, no evidence of permanent auditory damage on active duty, or record of complaints or treatment of hearing loss or tinnitus in service. Moreover, in regard to hearing loss, the 2006 Institute of Medicine panel concluded based on their understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was unlikely. The Board finds, however, that the April 2015 opinion is inadequate and thus is provided no probative weight. The examiner did not consider the Veteran's lay statements and instead essentially relied on the absence of in-service hearing loss and tinnitus complaints or treatment and the absence of a threshold shift in service as a basis for the negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In regard to the reliance by the examiner on the 2006 IOM report, the Board observes that the United States Court of Appeals for Veterans Claims (Court) has directed attention to the fact that language of the IOM report may also 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 all pertinent aspects of the report's findings. If a VA examiner relies on a medical treatise or literature, and there is any inconsistency within the evidence or with the conclusions drawn, the Board must address these inconsistencies. McCray v. Wilkie, 31 Vet. App. 243 (2019). Here, the VA examiner contemplated only the IOM report's negative findings. For these reasons, the VA opinion is inadequate to decide the claim. Evidence in support of service connection includes April 2016 and November 2017 private medical opinions. The April 2016 private medical opinion from G.H., an audiologist, opined that since the Veteran was exposed to jet engine noise on the flight line it was at least as likely as not that the Veteran's hearing loss and tinnitus was due to military noise exposure. The Board provides the April 2016 some probative weight. While it is evident the examiner was provided history from the Veteran, the opinion has little rationale in support of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008). A November 2017 private medical opinion from S.J.H., an audiologist, opined that the hearing loss and tinnitus was at least as likely as not due to military noise exposure. In the opinion, S.J.H. reviewed the Veteran's military history as provided by the Veteran, including his MOS; his medical history, including the onset of his tinnitus and his entrance and exit examinations which she found showed a decrease in hearing; and referenced specific records including a service treatment record and DD Form 214. The Board provides the November 2017 opinion from S.J.H. significant probative weight. The private medical opinion is competent, credible, and probative: it was authored by an audiologist who evaluated the Veteran and was informed of the Veteran's military and medical history. The mere fact that it is not clear whether S.J.H. reviewed the claims file is not reason enough to find the opinion inadequate, as competent history provided the Veteran is adequate and the opinion considered specific evidence within the claims file, which tends to indicate records were reviewed. See Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005). Moreover, S.J.H. addressed the lay statements regarding the Veteran's MOS and onset of his disabilities. Nieves-Rodriguez, supra. Accordingly, the opinion is provided significant probative weight. Therefore, with resolution of any doubt in his favor, the Board finds that the competent and credible evidence is, at the very least, in equipoise as to whether the Veteran's bilateral hearing loss and tinnitus are related to military noise exposure in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(d). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.