Citation Nr: 21061973 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 20-03 449 DATE: October 6, 2021 ORDER New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. In a final decision issued in August 1994, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral hearing loss. 2. Evidence associated with the record since the final denial in August 1994 is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. Resolving all doubt in the Veteran's favor, his current bilateral hearing loss is related to his military service. 4. Resolving all doubt in the Veteran's favor, his currently diagnosed tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The August 1994 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c) (1991) & (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1994) & (2021). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 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 1987 to July 1990, January 1991 to March 1991, and May 1993 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2018 by a Department of Veterans Affairs (VA) Regional Office. In September 2021, the Veteran testified at a Board hearing before the undersigned. The case is being rendered under the Board's One-Touch Initiative. The Board notes the Veteran did not specifically file a formal claim for service connection for bilateral hearing loss and that the AOJ did not explicitly adjudicate a claim for service connection for bilateral hearing loss in the October 2018 rating decision. Nevertheless, as discussed in greater detail below, the Board determines a service connection claim for bilateral hearing loss can be inferred from the findings in an October 2018 VA examination report and the Veteran's lay statements. Consequently, the Board finds the October 2018 rating decision constituted an implicit denial of the service connection claim for bilateral hearing loss and, thus, the Veteran's failure to clearly appeal the issue is not a bar to appellate review. See Ingram v. Nicholson, 21 Vet. App. 232 (2007); Cogburn v. Shinseki, 24 Vet. App. 205, 215 (2010). Moreover, given the award of service connection granted herein, the Veteran is not prejudiced by the Board's acceptance of jurisdiction over the issue in the instant case. Application to Reopen Previously Denied Claim Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if 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 means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, VA received the Veteran's original claim for service connection for bilateral hearing loss in June 1994, which the AOJ denied in an unappealed rating decision issued in August 1994. The AOJ based the denial on the absence of audiometric findings meeting the criteria for a hearing loss disability. The Veteran was advised of the decision and his appellate rights but did not enter a notice of disagreement with such decision. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of the decision, and no relevant service department records have since been received. Therefore, the August 1994 rating decision is final. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1994). Since the issuance of the August 1994 rating decision, additional evidence, to include an October 2018 VA examination report, has been received. In particular, the October 2018 VA examination report reflects audiometric findings that meet the criteria for a hearing loss disability. 38 C.F.R. § 3.385. As such newly received evidence speaks to the basis of the prior denial, namely, the existence of a current disability for service connection purposes, the Board finds such is not cumulative or redundant of the evidence of record at the time of the August 1994 rating decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. Therefore, new and material evidence has been received, and such claim is reopened. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that high frequency sensorineural hearing loss is considered an organic disease of the nervous system and therefore a presumptive disability. Likewise, tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Bilateral Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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. With respect to a current disability, VA audiometric testing performed in October 2018 revealed bilateral hearing loss as defined by VA regulation. Additionally, although the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis referable to bilateral hearing loss, the Board finds hazardous noise exposure is consistent with his military occupational specialty of fighting vehicle infantryman. Thus, the remaining inquiry is whether such disorder is related to the Veteran's in-service noise exposure. In this respect, the October 2018 VA examiner opined the Veteran's bilateral hearing loss is at least as likely as not related to his military noise exposure. In particular, the VA examiner noted there was a significant permanent shift in hearing threshold beyond test variability from entrance to separate in the right ear, which was indicative of possible auditory damage. Though there was not a threshold shift seen in the left ear, the VA examiner explained that the effects of noise exposure on the auditory system are known in the form of high frequency sensorineural hearing loss and tinnitus, which can arise years after the noise exposure ceases. In this regard, the VA examiner found the Veteran had current hearing loss consistent with noise-induced hearing loss. Notably, there is no medical opinion to the contrary. Thus, the Board finds the competent evidence relates the Veteran's current bilateral hearing loss to his in-service noise exposure. Consequently, the Board resolves all doubt in the Veteran's favor and finds his current bilateral hearing loss is related to his military service. Therefore, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Tinnitus The Veteran reports that his tinnitus had its onset during service and has continued to the present time. In this regard, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). Therefore, despite the Veteran's reported denial of symptoms of tinnitus on VA examination in June 1994, and the October 2018 VA examiner's determination that the Veteran denied tinnitus "as defined in the Dauman and Tyler (1992) cited in the Tinnitus Handbook (Tyler)", the Board finds the Veteran's lay statements are competent to establish a current disability. Additionally, as noted above, the Veteran's duties as a fighting vehicle infantryman exposed him to loud noises during service and, thus, hazardous noise exposure on active duty is conceded. Moreover, the Board finds the Veteran's testimony of the onset and continuation of such symptoms since service to be competent and credible. Furthermore, when a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. Resolving all doubt in the Veteran's favor, therefore, the Board finds that his current tinnitus had its onset in service. Accordingly, service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.R.F. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.