Citation Nr: 21064713 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-50 095 DATE: October 21, 2021 ORDER The application to reopen a claim of service connection for bilateral hearing loss is granted. 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 of service connection for bilateral hearing loss was originally denied in a March 2013 rating decision on the basis that the disability was not incurred in or caused by service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the March 2013 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss, the absence of which was the basis of the previous denial. 3. The Veteran's bilateral hearing loss is related to noise exposure in service. 4. The Veteran's tinnitus is related to noise exposure in service. CONCLUSIONS OF LAW 1. The AOJ's March 2013 decision that denied the claim of service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. 2. The evidence received since the March 2013 AOJ decision is new and material and reopening of the claim of service connection for bilateral hearing loss is therefore warranted. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 4. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to January 1971. These matters come before the Board of Veterans' Appeals (Board) from a March 2018 rating decision. The Veteran requested a Board hearing before a Veterans Law Judge (VLJ) on his October 2018 substantive appeal (VA Form 9). A Board hearing was scheduled for a date in October 2021, but the Veteran requested a postponement of the hearing. However, in light of the fact that the Board is awarding service connection for bilateral hearing loss and tinnitus (thus reflecting a full grant of the benefits sought), a hearing is not necessary and the Board may proceed to adjudicate the issues on appeal. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). 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. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen a claim of service connection for bilateral hearing loss The Veteran's claim of service connection for bilateral hearing loss was originally denied in a March 2013 rating decision on the basis that the disability was not incurred in or caused by service. The Veteran was notified of the March 2013 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the March 2013 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. The pertinent new evidence received since the March 2013 denial of service connection for bilateral hearing loss includes a December 2017 audiological examination report and letter from C.A. Foss, Au.D.. This additional evidence indicates that the Veteran experiences current bilateral hearing loss disability and includes a medical opinion that the hearing loss is related to noise exposure in service. Therefore, the additional evidence pertains to an element of the claim of service connection for bilateral hearing loss that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran's current hearing loss is related to service. The evidence is, therefore, new and material, and the claim of service connection for bilateral hearing loss is reopened. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Organic diseases of the nervous system (e.g., sensorineural hearing loss and tinnitus) are included among the list of chronic diseases. Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Entitlement to service connection for bilateral hearing loss and tinnitus In this case, the Veteran contends that he has current bilateral hearing loss and tinnitus which are related to noise exposure in service. The Board finds, for the following reasons, that the Veteran has current bilateral hearing loss disability and tinnitus and that these disabilities are related to service. A November 2017 audiological examination report from The Hearing Clinic indicates that the Veteran has been diagnosed as having bilateral sensorineural hearing loss disability as defined by VA and tinnitus. See 38 C.F.R. § 3.385. Therefore, current disabilities have been demonstrated. The Veteran has reported that he was exposed to loud noise in service associated with military weaponry. He is competent to report noise exposure in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, his DD Form 214 indicates that his military occupational specialty was a duty soldier and that he received the Expert Rifle Badge, there is nothing to explicitly contradict his reports, and they are consistent with the evidence of record and the circumstances of his service. Therefore, the Veteran's reports of in-service noise exposure are credible and in-service acoustic trauma is conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). As for whether the Veteran's hearing loss and tinnitus are related to service, there are conflicting medical opinions. 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 evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The audiologist who conducted the March 2013 VA audiological examination reported that the Veteran's claims file was not reviewed and opined that his hearing loss and tinnitus were likely ("at least as likely as not"/"50 percent probability or greater") caused by or a result of service. The examiner reasoned that the Veteran's hearing loss and tinnitus were consistent with a history of noise exposure. Therefore, it was likely ("at least as likely as not") that his hearing loss and tinnitus were a result of noise exposure during service. The March 2013 examiner subsequently reviewed the Veteran's claims file and opined that his hearing loss and tinnitus were not likely (not "at least as likely as not"/"50 percent probability or greater") caused by or a result of service. She reasoned that the Veteran had no ratable hearing loss at the time of his separation from service. Also, normal hearing during service strongly suggested that any reported tinnitus was less likely to be from noise exposure. Therefore, his hearing loss and tinnitus were not due to military noise exposure. In his December 2017 letter, Dr. Foss explained that he had reviewed some of the Veteran's service records and that the Veteran was exposed to the noise of rifles, artillery, and dynamite explosions during service. Dr. Foss opined that it was likely ("more likely than not") that the Veteran's noise exposure in service was the beginning of his hearing loss and tinnitus. He reasoned that the type and degree of the Veteran's hearing level was consistent with noise induced hearing loss. The pure tone averages for 1000, 2000, 3000, and 4000 Hertz was 52.50 dBHL for the right ear and 60.00 dBHL for the left ear. The March 2013 opinion that the Veteran's hearing loss and tinnitus are not related to service are of limited probative value because they are solely based upon the absence of evidence of hearing loss disability during service. The Board points out that the absence of hearing loss disability (as defined by 38 C.F.R. § 3.385 ) in service is not in and of itself fatal to a claim of service connection for hearing loss disability. See Hensley, 5 Vet. App. at 159 ; Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In other words, the absence of evidence of a hearing loss disability as defined by this regulation in service does not necessarily mean that the Veteran did not experience any hearing impairment in service. Dr. Foss' December 2017 opinion is based upon an examination of the Veteran, a review of his records, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record and the circumstances of the Veteran's service. Thus, the December 2017 opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In light of the above medical opinions, the Board finds that the preponderance of the evidence is in favor of a conclusion that the Veteran's current bilateral hearing loss and tinnitus are related to noise exposure in service. Therefore, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.