Citation Nr: 21064817 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-45 108 DATE: October 21, 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 July 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 July 2015 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claims on appeal. 3. The Veteran is currently diagnosed with a bilateral hearing loss disability and tinnitus. 4. In conjunction with his duties associated with his military occupational specialty (MOS), the Veteran incurred acoustic trauma 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 acoustic trauma in service. CONCLUSIONS OF LAW 1. The July 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 July 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. §§ 1110, 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. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to December 1992. 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 October 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 July 2015 rating decision, the RO, as pertinent here, denied the Veteran's claim for service connection for bilateral hearing loss and tinnitus. The Veteran did not appeal the decision and decision became final. 38 C.F.R. § 20.1103. Accordingly, the last final rating decision for both claims at issue here is the July 2015 rating decision. In February 2017, the Veteran submitted a request to reopen his claims and provided a private medical opinion, dated January 2017. In the April 2017 rating decision, the RO did not address whether new and material evidence had been submitted to reopen the claims but instead addressed the claims on the merits, finding that the VA medical opinion was more probative than the January 2017 private medical opinion. Despite this, the Board has the responsibility of adjudicating the issue of whether new and material evidence has been submitted in the first instance. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Nevertheless, the Board finds that the additional evidence received since the prior final denial, particularly the January 2017 private medical opinion, speaks to the question of whether the Veteran's disabilities are related to service, the unestablished element in this case. 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). 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). Sensorineural hearing loss ant tinnitus are considered organic diseases of the nervous system and therefore are chronic diseases. Fountain v. McDonald, 27 Vet. App. 258 (2015). 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. Analysis The Veteran contends that his bilateral hearing loss and tinnitus are related to military noise exposure in conjunction with his MOS as a small arms repair technician and explosive ordnance technician. See February 2017 Correspondence to VA. Viewing the evidence in the light most favorable to the Veteran, and the providing the benefit of any reasonable doubt, the Board finds the probative evidence supports both claims for hearing loss and tinnitus. 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 June 2015 VA Examination Report. Therefore, the first element of service connection for both claims are met. Regarding 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 during service was that of a small arms repair technician and explosive ordnance technician, which have a moderate and high probability of noise exposure, respectively. In the February 2017 correspondence to VA, the Veteran stated that he had spent a good deal of time on the shooting ranges with exposure to rifle and pistol fire for extended periods of time as a small arms repair technician. As an explosive ordnance technician, the Veteran stated he experienced frequent exposure to explosions from bombs and other high explosive blasts on nearly a daily basis and had several extremely close detonations that caused extended periods of hearing loss and ringing ears, including while on deployment in Operation Desert Storm. The Veteran provided several examples, including a situation when a fuse detonated on the range only inches from behind a blast shield, which did not protect him from the sound; when a 50-pound cratering charge detonated less than 25 yards away from him, and an October 1990 explosion when he was aboard the USS Iwo Jima. 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 as acoustic trauma; the second element of service connection is therefore met. As such, the claims now hinge on whether there is competent evidence of nexus between the current disabilities and in-service acoustic trauma. Evidence against the claim includes two VA medical opinions, both which opined the Veteran's bilateral hearing loss and tinnitus were not related to service. The examiner of the June 2015 opinion found the service treatment records (STRs) showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service and there was no record of complaint or treatment of the claim condition in the STRs. The examiner continued that although the Veteran denied recreational and occupational noise exposure, he reported a positive family history of hearing loss and his reported date of onset was after release from active duty. Therefore, the examiner opined the hearing loss and tinnitus were not related to service. Another VA examination was obtained in March 2020. The examiner noted the April 1985 service enlistment and October 1992 service separation hearing examinations within the STRs showed normal hearing in both ears with no significant threshold shifts. The examiner further noted treatment for otitis media and otitis externa in December 1990 with resolution noted in January 1991; therefore, there was no evidence of acoustic trauma or hearing loss in either ear. Regarding tinnitus, the examiner noted the Veteran's STRs were silent for complaints of tinnitus with no significant threshold shift. The examiner continued that in the absence of objectively verifiable noise injury, the association between tinnitus and noise exposure cannot be assumed to exist. Thus, in the Veteran's case, there was no nexus between the Veteran's reported hearing loss and tinnitus to his military service. The Board provides both VA medical opinions minimal probative weight. Notably, both opinions did not address the Veteran's lay statements regarding the onset of his hearing loss and tinnitus as related to his MOS, relying instead on the lack of evidence of hearing loss and tinnitus in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). To the contrary, evidence in support of the claims includes a January 2017 private medical opinion provided by J.U., an audiologist and Fellow of the American Academy of Audiology. In the opinion, J.U. noted the military service of the Veteran, including his participation in Desert Storm and his exposure to hazardous noise from daily close proximity bomb explosions and small arms fire. J.U. also noted that he has had no hazardous noise exposure in his civilian life. The examiner found that testing revealed moderate to moderately severe sensorineural hearing loss, bilaterally, and word recognition scores using the Maryland CNC word list were 92 percent in the right ear and 88 percent in the left ear. In conclusion, J.U. opined that the significant hearing loss and constant tinnitus was more likely than not a result from exposure to hazardous noise during military service, especially in the absence of noise exposure during civilian life. The Board finds the private medical opinion to be competent, credible, and probative; it is authored by an audiologist who based his opinion on audiometric testing in conjunction with this review of the Veteran's military and civilian history of noise exposure. Moreover, J.U. considered and addressed the lay statements regarding the Veteran's MOS and onset of his disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board assigns the opinion significant probative weight. (Continued on the next page) Therefore, with resolution of any reasonable doubt in the Veteran's favor, the Board finds that the probative evidence in this case supports a relationship between the Veteran's current bilateral hearing loss and tinnitus are his active military service. The Board grants service connection for bilateral hearing loss and tinnitus. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. 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.