Citation Nr: 21065249 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-07 167 DATE: October 25, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss is granted. The petition to reopen the previously denied claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include social anxiety disorder, unspecified depressive disorder, and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A January 2016 rating decision denied service connection for bilateral hearing loss. VA received no appeal or new and material evidence prior to expiration of the appeal period; this decision became final. 2. Evidence received since the January 2016 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss. 3. A January 2016 rating decision denied service connection for tinnitus. VA received no appeal or new and material evidence prior to expiration of the appeal period; this decision became final. 4. Evidence received since the January 2016 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for tinnitus. 5. Resolving reasonable doubt in the Veteran's favor, her tinnitus was caused by in-service exposure to harmful noise. CONCLUSIONS OF LAW 1. The January 2016 rating decision denying the claim for service connection for bilateral hearing loss is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 2. The January 2016 rating decision denying the claim for service connection for tinnitus is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 3. The criteria for service connection for tinnitus are 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 in the Army from August 1990 to December 1990, and from January 1991 to June 1991, with service in Southwest Asia. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing has been associated with the record. Service Connection 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for tinnitus A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran's claims of service connection for bilateral hearing loss and tinnitus were initially denied by a February 2015 rating decision. Rating decisions in April 2015 and January 2016 continued the denial of these claims. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the January 2016 decision became final. The prior denials were based on a VA examiner's finding that the Veteran's military occupational specialty (MOS) had a low probability of noise exposure. At the March 2021 hearing, the Veteran and the Veteran's commanding officer testified that the Veteran was exposed to loud noise from weapons, generators, and large trucks during service in the Gulf War, and that the Veteran was not always provided with ear plugs. The low threshold for reopening the claims has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, new and material evidence has been received to reopen the claims. Accordingly, the petition to reopen the previously denied claims for service connection for bilateral hearing loss and tinnitus is granted. 3. Entitlement to service connection for tinnitus The Veteran contends that she is entitled to service connection for tinnitus as a result of noise exposure during service in Southwest Asia. In December 2014, a VA examiner concluded that the Veteran's tinnitus was less likely than not related to military service. The examiner reasoned that the hearing loss and tinnitus occurred 17 years after her time in the military, and that her hearing was normal at separation. In March 2018, a private physician opined that the Veteran's tinnitus may have been a result of her service in the National Guard and Desert Storm. In July 2018, a VA examiner concluded that the Veteran's tinnitus was less likely than not related to military service. The examiner reasoned that the hearing loss and tinnitus occurred 22 years after her time in the military, and that her hearing was normal at separation. At the March 2021 hearing, the Veteran and the Veteran's commanding officer testified that the Veteran was exposed to loud noise from long weapons, tank weapons, generators, and large trucks during service in the Gulf War, and that the Veteran was not always provided with ear plugs. The Veteran testified that she first experienced tinnitus symptoms while exposed to generators and alarms for Scud missile attacks during Desert Storm, and she had experienced tinnitus symptoms since that time. The Veteran has a current diagnosis of tinnitus, which is a diagnosis capable of lay observation. She is competent to report when she first experienced tinnitus and that the symptoms have continued since service. Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds the Veteran's statements regarding having tinnitus since service discharge competent and credible. In this case, the Veteran was exposed to loud noise during service in Southwest Asia, and she credibly asserts that tinnitus has been persistent since that time. Under the circumstances, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include social anxiety disorder, unspecified depressive disorder, and posttraumatic stress disorder (PTSD), is remanded. The Veteran contends that she suffers from an acquired psychiatric disorder, to include social anxiety disorder, unspecified depressive disorder, and posttraumatic stress disorder (PTSD), related to fear of hostile enemy activity during service in Southwest Asia, and also related to sexual harassment experienced in February 1991. See December 2018 and October 2019 Statements in Support of Claim. In July 2018, a VA mental health examiner found that the Veteran's mental health symptoms do not currently meet the criteria for PTSD because she does not endorse all of the hallmark symptoms. The examiner did diagnose the Veteran with Social Anxiety Disorder and Unspecified Depressive Disorder. The examiner concluded that the Veteran's mental health diagnoses were less likely than not a result of an in-service stressor related event. The examiner reasoned that the Veteran's service treatment records (STRs) are silent for complaints of nervous trouble, depression, or excessive worry. The VA examiner did not consider the Veteran's lay statements regarding her stressors and mental health symptoms since separation from service. The Board finds that remand is necessary for a new VA examination and medical opinion which considers the Veteran's lay statements and hearing testimony regarding her in-service stressful events and mental health symptoms since separation. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that she suffers from bilateral hearing loss caused by exposure to loud noise during her service in Southwest Asia. VA considers impaired hearing to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's claim of service connection for bilateral hearing loss has been previously denied by VA due to VA audiological opinions which found that the Veteran did not meet the criteria for left ear hearing loss, and that the Veteran's right ear hearing loss was not related to service because the Veteran's hearing loss was normal during service. A VA audiological examiner also found that the Veteran's MOS had a low probability of noise exposure. At the March 2021 hearing, the Veteran and the Veteran's commanding officer testified that the Veteran was exposed to loud noise from long weapons, tank weapons, generators, and large trucks during service in the Gulf War, and that the Veteran was not always provided with ear plugs. The Veteran testified that her bilateral hearing loss has gotten worse since her last VA examination. Therefore, remand is necessary for a new VA audiological examination to consider the Veteran's statements and whether the Veteran's audiological symptoms meet the VA requirements for hearing loss. In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the United States Court of Appeals for Veterans Claims makes clear that a lack of objective evidence of hearing loss during military service, or at separation from service, is not fatal to a service connection claim. A remand of the claim for bilateral hearing loss is required to obtain an opinion compliant with Hensley. The matters are REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder, to include posttraumatic stress disorder (PTSD). The examiner must consider the Veteran's lay statements, to include hearing testimony. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include experiences during service in Southwest Asia. 2. Schedule the Veteran for an examination by a state licensed audiologist to determine the nature and etiology of any bilateral hearing loss. (a.) Following a review of the entire record, to include the Veteran's lay statements concerning her in-service exposure to noise in Southwest Asia, the examiner should opine as to whether it is at least as likely as not that any hearing loss had its onset during, or is otherwise related to, her active duty service. (b.) In rendering an opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.