Citation Nr: 21069972 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-49 582 DATE: November 22, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral hearing loss is granted. New and material evidence having been received, the claim of entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for bilateral hearing loss and tinnitus were denied in the February 2013 and August 2015 rating decisions; the August 2015 rating decision became final because the Veteran did not submit a timely notice of disagreement or new and material evidence within the appeal period. 2. The additional evidence received since the August 2015 rating decision is not redundant or cumulative evidence previously considered and relates to unestablished facts necessary to substantiate the Veteran's bilateral hearing loss and tinnitus claims. 3. The Veteran's bilateral hearing loss had its onset in service. 4. The Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The August 2015 rating decision denying the claims of service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for service connection for tinnitus have been 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 in the United States Army from January 1969 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge in August 2021. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. The February 2013 rating decision denied the Veteran's claims of service connection for bilateral hearing loss and tinnitus for lack of a nexus. Subsequently, an August 2015 rating decision denied the Veteran's application to reopen the claims of service connection for bilateral hearing loss and tinnitus for lack of new and material evidence. A timely notice of disagreement was not received and no additional evidence pertinent to these issues was associated with the claims file within the one-year appeal period of the August 2015 rating decision. See 38 C.F.R. § 3.156(a); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Accordingly, the August 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.1103. The instant claims for service connection for bilateral hearing loss and tinnitus were received in August 2017. Since the August 2015 rating decision, the Veteran submitted additional evidence of two positive nexus opinions linking his current bilateral hearing loss and tinnitus to in-service acoustic trauma. See Private treatment records dated December 2015 and August 2017. This evidence is new, in that it was not previously of record at the time of the August 2015 rating decision, not cumulative or redundant of evidence already of record, and relates to unestablished facts necessary to substantiate the Veteran's service connection claims. Thus, the Board finds that new and material evidence has been received warranting reopening of the claims of service connection for bilateral hearing loss and tinnitus. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Justus v. Principi, 3 Vet. App. 510, 513 (1992). SERVICE CONNECTION 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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); 38 C.F.R. § 3.303. 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, 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. The Veteran reports a decline in his hearing acuity and ringing in the ears began during service and has continued since discharge as a result exposure to hazardous noise during service. Specifically, the Veteran stated he was in the artillery unity and exposed to constant artillery fire without hearing protection during service. See October 2021, Board hearing; October 2018, VA Form 9; December 2015, Private treatment record. The record shows the Veteran has bilateral hearing loss for VA purposes and report of ongoing tinnitus since military service. See December 2015, Private treatment record; February 2013, VA examination (demonstrating pure tone thresholds of 55 decibels or higher between 3000 to 4000 Hz for the right and left ears). At the October 2021 Board hearing, the Veteran's wife of 52 years testified that she met the Veteran during active service. After he was discharged, she noticed that his hearing declined because the television volume was loud, and he could not hear or understand her. There are three private positive nexus opinions of record from K. L.., J. E.D., and E. H. All three medical professionals considered the Veteran's lay statements and history, in-service and post-service exposure to noise, and based their opinions on concurrent audiology examinations. They all concluded that the Veteran's bilateral hearing loss was a result of acoustic trauma sustained during military service. See Private treatment records dated December 2015 and August 2017. The Board, accordingly, finds all of the private nexus opinions competent, credible, and highly probative. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (1998). In light of the above, the Board finds the competent and credible evidence of record shows that the Veteran's current bilateral hearing loss and tinnitus began during service, has been recurrent since that time, and are etiologically related to the Veteran's in-service acoustic trauma. The Board acknowledges the September 2017 VA examiner's negative nexus opinion finds it inadequate as the examiner relied on an Institute of Medicine (IOM) study without addressing the inconsistencies outlined by the McCray case and did not have the opportunity to consider the Veteran's October 2021 Board testimony. See McCray v. Wilkie, 31 Vet. App. 243 (2019) (holding that any future opinion predicated on the IOM reports' findings regarding delayed onset hearing loss must address the inconsistencies, "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed."). (Continued on the next page) Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.