Citation Nr: 21068288 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-44 017 DATE: November 9, 2021 ORDER New and material evidence has been received sufficient to readjudicate the claim of entitlement to service connection for tinnitus; the appeal is granted to this extent only. New and material evidence has been received sufficient to readjudicate the claim of entitlement to service connection for hearing loss; the appeal is granted to this extent only. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for hearing loss is granted. FINDINGS OF FACT 1. Evidence received since the July 2014 rating decision is new and material to the issue of entitlement to service connection for tinnitus. 2. Evidence received since the July 2014 rating decision is new and material to the issue of entitlement to service connection for hearing loss. 3. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to his noise exposure during service. 4. Resolving reasonable doubt in the Veteran's favor, his hearing loss is at least as likely as not related to his noise exposure during service. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for tinnitus have been met. 38 C.F.R. § 3.156. 2. The criteria for readjudicating the claim for service connection for hearing loss have been met. 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for hearing loss 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 had active military service from July 1966 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to the Veteran's VA Form 9 submitted in August 2017, a Board hearing was scheduled for October 2021. On September 30, 2021, the Veteran withdrew his request for a hearing. An Informal Hearing Presentation was submitted in October 2021. 1. Whether new and material evidence was received to readjudicate the claim of service connection for tinnitus 2. Whether new and material evidence was received to readjudicate the claim of service connection for hearing loss By way of history, the Veteran submitted a claim of service connection for tinnitus and hearing loss in June 2013. A July 2014 rating decision denied the Veteran's claims. The Veteran did not appeal the July 2014 rating decision, nor was new and material evidence submitted within the permitted time period. The decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In May 2016, the Veteran submitted a VA Form 21-526EZ requesting service connection for hearing loss and tinnitus. An August 2016 rating decision denied readjudicating the claims finding no new and material evidence had been received. The Veteran timely filed a Notice of Disagreement in September 2016. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). 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). In this case, the Board finds that new and material evidence has been received subsequent to the final July 2014 rating decision. Relevant evidence added to the claims file since the July 2014 rating decision includes a lay statement by a fellow servicemember received in November 2016 documenting the Veteran was exposed to loud noise while working in vehicle maintenance on a flight line; a November 2016 private positive medical opinion linking the Veteran's hearing loss to service; and an Informal Hearing Presentation submitted in October 2021 documenting 3 treatises regarding noise exposure and subsequent hearing problems. This evidence satisfies the definition of new and material evidence, as it raises a reasonable possibility of substantiating the claims and was not before decision makers at the time of the July 2014 decision. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claims of service connection for bilateral hearing loss and tinnitus. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disease or injury first 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). A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus. He contends that his disability is due to loud noise exposure while working in vehicle maintenance on the flight line during active service. See VA Form 9, August 2017. At the outset, the Board notes that tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Importantly, if the Veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. During his June 2014 VA examination provided in conjunction with his hearing loss claim, the Veteran reported recurrent tinnitus. The examiner opined that the Veteran's tinnitus was less likely than not related to service. For rationale, the examiner noted there was no medical evidence of hearing loss attributable to military service and tinnitus is not a related sequelae. There is no medical evidence of complaints regarding tinnitus during service or at separation. The Board notes the negative nexus opinion provided by the June 2014 VA examiner. However, this opinion does not adequately consider the Veteran's lay reports of tinnitus as a result of service. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2014); 38 C.F.R. § 3.303(a); Jandreau, supra; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds the Veteran's report of tinnitus occurring during and since service to be sufficiently credible to support the claim. The Veteran is competent to report a current diagnosis of tinnitus and has conceded in-service noise exposure. See Charles, 16 Vet. App. at 374. Resolving reasonable doubt in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for hearing loss is granted. The Veteran seeks service connection for hearing loss. In favor of his claim, the Veteran asserts he was exposed to jet engine noise during service while serving in vehicle maintenance on/near the flight line, with no hearing protection. See Statement in Support, May 2016. Based on a review of the Veteran's claims file, the Board finds that the evidence of record supports a grant of service connection for bilateral hearing loss. First, there is evidence of a current disability. The Veteran was afforded a VA examination in June 2014, at which time an examiner confirmed that the Veteran experiences mixed bilateral hearing loss. See VA Hearing Examination, June 2014. Second, there is evidence of an in-service event, disease, or injury. The Veteran asserts that he was exposed to acoustic trauma from working in vehicle maintenance on/near the flight line. The Board notes that the Veteran is competent to state that he experienced exposure to loud noises while in service. See Layno, 6 Vet. App. at 469-471. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is related to his service. In that regard, the June 2014 VA examiner opined that although noise exposure is conceded, there was no nexus of auditory damage to link the current hearing loss to active duty noise exposure. The examiner noted a 2006 Institute of Medicine panel that concluded that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure and a prolonged delay in the onset of noise-induced hearing was "unlikely." In contrast, a November 2016 private positive medical nexus opinion was provided. Following an examination, Dr. L.D., an Otolaryngologist, noted the Veteran's audiogram showed slight sloping to severe-profound high frequency mixed sensorineural and conductive hearing loss bilaterally. The physician opined that his high-frequency sensorineural hearing loss is "almost certainly the result of loud noise exposure likely due to his military experience." (Continued on the next page) Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current disability first manifested during active service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.