Citation Nr: 21069376 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-12 309 DATE: November 18, 2021 ORDER New and material evidence having been received, entitlement to service connection for bilateral hearing loss and tinnitus are reopened. Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. Evidence received since the June 2016 rating decision is new and material regarding the issues of service connection bilateral hearing loss and tinnitus, as it contains evidence not previously considered that has some tendency to help link the Veteran's current disability to his active military service. 2. The Veteran's service records were lost in the St. Louis fire in June 1973. 3. Resolving all doubt in the Veteran's favor, the current bilateral hearing loss and tinnitus originally manifested during service. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran's previously denied claim of service connection for bilateral hearing loss and tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for tinnitus have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). 3. The criteria for service connection for hearing loss have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 1951 to October 1953. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran withdrew his request for a hearing before a VLJ. Service Connection 1. New and Material Evidence. The Veteran contends his current bilateral hearing loss and tinnitus are the result of military service. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran seeks to reopen the previously denied claims of service connection for a bilateral hearing loss and tinnitus. The claim was initially considered and denied by the RO in a June 2016 rating decision. The Veteran did not initiate an appeal of the decision denying service connection for bilateral hearing loss and tinnitus, and he also did not submit any new and material evidence with respect to this claim within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the decision (denying service connection for bilateral hearing loss and tinnitus) became final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran then filed to reopen a claim for service connection for bilateral hearing loss and tinnitus in August 2017. The claims were subsequently considered and denied in an August 2018 rating decision. The Veteran perfected the appeals, and they are now before the Board. Since the June 2016 rating decision, additional evidence has been received in the form of a VA examination and lay testimony from the Veteran. The VA examination and lay testimony are new because they have not been previously submitted. This evidence is also material because it pertains to the basis for the prior denial, that is, a basis to relate any current hearing loss and tinnitus to the Veteran's period of active service and raises a reasonable possibility of substantiating the claim. Specifically, the Veteran testified regarding his continuity of symptoms since service. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for bilateral hearing loss and tinnitus. See 38 C.F.R. § 3.156(a). When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995). This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen service connection for bilateral hearing loss and tinnitus. 2. Service Connection. The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus. After review of the evidence, both lay and medical, the Board finds that service connection for bilateral hearing loss and tinnitus is granted. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may 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). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, which includes sensorineural hearing loss and tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying 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; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. A June 2016 VA examinations reflected auditory thresholds above 40 decibels in the 2,000, 3000, and 4,000 hertz frequency bilaterally. A June 2018 VA examinations reflected auditory thresholds above 40 decibels in all pertinent hertz frequency bilaterally and also diagnosed tinnitus. Further, the Board notes that the June 2016 audiologist indicated the Veteran denied tinnitus. However, in an April 2018 letter, the Veteran clarified that he did experience tinnitus, even at discharge from service. Thus, the Veteran has current bilateral hearing loss and tinnitus disabilities. The Veteran's service records were lost in the St. Louis fire in June 1973, and that there is no source from which destroyed medical or service records can be duplicated. The Board takes notice that a July 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri is estimated to have destroyed the records of 80 percent of Army personnel discharged between November 1912 and January 1960. See www.archives.gov/st-louis/military-personnel/fire-1973.html. Where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claims has been undertaken with this heightened duty in mind. As previously stated, the Veteran underwent VA examination in June 2016 and June 2018 determine the nature and etiology of the hearing loss and tinnitus. The Veteran reported in-service noise exposure from small arms fire and 60mm mortars. The VA examiner diagnosed the Veteran with hearing loss and tinnitus but opined that it was less likely than not caused by his military service. The rationale provided was that there were no in-service treatment records to review and the Veteran experienced post-service noise exposure. Of note, the Veteran's DD 214 reflects that he served in an infantry specialty. Therefore, the Veteran's credible reports of noise exposure are consistent with the places, type, and circumstances of the Veteran's service. 38 U.S.C. § 1154(a). Of note, both the June 2016 and June 2018 examiners indicated they were unable to offer a definitive opinion. The June 2018 examiner further indicated that it would require mere speculation to offer an opinion, but merely based the finding on the absence of service treatment records. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (noting that a speculative medical opinion is not per se inadequate, but the examiner must provide a basis for that determination and the phrase "without resort to speculation" should reflect the limitations of the medical community at large and not those of a particular examiner/reviewer). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claims. Specifically, the Board could seek further examinations to clarify and definitively opine on the etiology of the current bilateral hearing loss and tinnitus. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In this case there is a competent, lay testimony linking the currently diagnosed bilateral hearing loss and tinnitus to service. However, the competent evidence as to the etiology of the Veteran's hearing loss and tinnitus is in conflict. While the VA examination reports concluded that the Veteran's hearing loss and tinnitus were not related to service, the Veteran has explained that the decreased hearing and tinnitus actually began during service as a result of noise exposure and became progressively worse over time. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's hearing loss and tinnitus arose during service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for both hearing loss and tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Furthermore, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.