Citation Nr: 21065576 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 20-23 695 DATE: October 26, 2021 ORDER Petition to reopen claim of service connection for frostbite bilateral feet is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection frostbite left foot is remanded. Entitlement to service connection for frostbite right foot is remanded. FINDINGS OF FACT 1. The December 2016 rating decision denied service connection for frostbite bilateral feet. In December 2017, the decision became final. 2. New evidence submitted since December 2016 is not cumulative or redundant, and raises a reasonable possibility of substantiating the service connection claim for frostbite bilateral feet. 3. Resolving reasonable doubt in the Veteran's favor, bilateral hearing loss is at least as likely as not related to hazardous noise exposure in service. 4. Resolving reasonable doubt in the Veteran's favor, tinnitus is at least as likely as not related to hazardous noise exposure in service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for bilateral feet frostbite. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from February 1951 to January 1953 and with the U.S. Air Force from November 1953 to November 1957. The Veteran testified at an October 2021 travel Board hearing before the undersigned. Petition to Reopen 1. Entitlement to service connection frostbite bilateral feet. The RO denied service connection for peripheral neuropathy of the bilateral feet (initially claimed as cold injury) in a December 2016 rating decision. This decision became final in December 2017. The evidence submitted after December 2016, including a Disability Benefits Questionnaire (DBQ) performed in September 2018, testimony from the October 2021 Board hearing, and a May 2021 medical opinion from a private provider, relates to unestablished facts necessary to substantiate this service connection claim. Therefore, the Board finds that this claim should be reopened. Service Connection Service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. Regarding service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Moreover, to establish service connection for sensorineural hearing loss, the Veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection bilateral hearing loss. The Veteran contends that his bilateral hearing loss and tinnitus developed due to in-service noise exposure, including using certain equipment while on the job in service. The Board notes that service personnel records document that although the Veteran generally served as a heavy vehicle operator while in the Air Force and as a pipeline installer/operator while in the Army. Records show these occupations have a high probability of hazardous noise exposure. The Veteran reported no other social or occupational noise exposure. The Board finds that the Veteran has current diagnoses of bilateral hearing loss and tinnitus and that they are related to in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). A March 2020 VA examiner noted noise exposure for the Veteran's in-service MOS was highly probable. The examiner opined that the Veteran's bilateral hearing loss was less likely as not due to service because his hearing was normal at separation and there was no evidence of threshold shift during service. The examiner provided an excerpt from Noise and Military Service: Implications for Hearing Loss and Tinnitus (2006): "The committee's understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." As for tinnitus, the examiner concluded that a diagnosis due to noise exposure or acoustic trauma is known to have a noticeable onset immediately or soon following the incident; however, the Veteran reported onset many years after separation. Therefore, his tinnitus was less likely than not caused by or a result of military noise exposure. An opinion was completed by a private physician in May 2021. The examiner reviewed the Veteran's treatment records and found that his bilateral hearing loss and tinnitus were most likely caused by or a result of his military service because the type of hearing loss (high frequency symmetrical loss) was likely noise induced. Given the Veteran's high probability of hazardous noise exposure, in conjunction with the May 2021 positive private opinion, and giving the Veteran the benefit of the doubt, the Board finds that the evidence is in equipoise. Service connection for bilateral hearing loss and tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to service connection for frostbite right foot is remanded. 2. Entitlement to service connection for frostbite left foot is remanded. The Board concedes the Veteran was exposed to harsh winters in Korea. Although the September 2018 VA examination discussed the Veteran's complaints of burning and pain in both feet, there was no discussion of whether there is a diagnosis of cold injury and/or frostbite. As such, a remand is needed to determine whether he has a current diagnosis of frostbite residuals that were caused or aggravated by his service. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate clinician to determine if he has a current diagnosis of frostbite residuals of the bilateral feet that had its onset in or was otherwise caused or aggravated by his service. The examiner is asked to provide a detailed rationale for any opinions reached. For purposes of this opinion, the examiner is asked to presume exposure to significant cold weather in Korea. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.