Citation Nr: 21070522 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-00 013A DATE: November 24, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for bilateral hearing loss is granted. New and material evidence having been received, the petition to reopen the claim for service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Since the final August 2015 decision, new and material evidence has been received that raises a reasonable possibility of substantiating the Veteran's claim for service connection for bilateral hearing loss. 2. Since the final February 2010 decision, new and material evidence has been received that raises a reasonable possibility of substantiating the Veteran's claim for service connection for tinnitus. 3. The Veteran's bilateral hearing loss is related to his in-service noise exposure. 4. The Veteran's tinnitus is related to his in-service noise exposure. CONCLUSIONS OF LAW 1. The August 2015 decision that denied the petition to reopen the claim for service connection for bilateral hearing loss is final; however, new and material evidence has been received and, thus, the claim is reopened. 38 U.S.C. §§ 5103A, 5108, 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. 2. The February 2010 decision that denied the petition to reopen the claim for service connection for tinnitus is final; however, new and material evidence has been received and, thus, the claim is reopened. 38 U.S.C. §§ 5103A, 5108, 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. 3. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. 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 United States Air Force from January 1964 until his honorable discharge in January 1968. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). By way of background, the Veteran filed an initial application for service connection for bilateral hearing loss and tinnitus on October 10, 2008. A Regional Office of the United States Department of Veterans Affairs (VA) denied the claims in a July 2009 decision. A VA Regional Office reopened the Veteran's claims in a February 2010 decision and continued denial of service connection for each claim. That decision became final. In a February 2013 decision, a VA Regional Office denied reopening of the Veteran's claims for service connection as new and material evidence was not received. On March 4, 2014, within one year of notification of the February 2013 decision, the Veteran filed a timely Notice of Disagreement only as to the denial of reopening his claim for service connection for tinnitus. A VA Regional Office issued a Statement of the Case in which it continued to deny reopening of the claim for service connection for tinnitus. The Veteran filed a timely VA Form 9, Substantive Appeal to the Board, as to that denial. The Veteran's appeal was not, however, certified to the Board. Instead, the Veteran filed a new claim to reopen his claims for service connection for tinnitus and hearing loss on June 8, 2015. In an August 2015 decision, a VA Regional Office denied the petition to reopen the claims because new and material evidence was not received. In a February 2016 decision, a VA Regional Office reopened the claims but confirmed and continued denial service connection. The Veteran filed a timely Notice of Disagreement and Substantive Appeal from the February 2016 VA Regional Office decision. The August 2015 decision became final. Regarding the Veteran's petition to reopen his claim for service connection for tinnitus, the Board concludes that the decision on appeal is the February 2013 decision that denied reopening of the claim for service connection. The Veteran filed a timely Notice of Appeal from that decision, and it remains unadjudicated. Regarding the Veteran's petition to reopen his claim for service connection hearing loss, the Board concludes that the decision on appeal is the February 2016 decision that reopened the claim for service connection but denied it on the merits. The Veteran filed a timely Notice of Appeal from that decision. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. New and Material Evidence To appeal a rating decision, the appellant must file a "notice of disagreement" "within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction." 38 U.S.C. § 7105(b)(1)(A); 38 C.F.R. § 19.2(c). A notice of disagreement must be submitted in writing and identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(b)(2)(A). If no notice of disagreement is filed within the prescribed period, the action or decision of the agency of original jurisdiction becomes final from the date notice was mailed. 38 U.S.C. § 7105(c). For the purposes of reopening claims decided by the agency of original jurisdiction (AOJ) before February 19, 2019 (the effective date of the Veterans Appeals Improvement and Modernization Act of 2017), such claims are still considered "legacy appeals" and are to be analyzed under VA's traditional "legacy" process. See 38 C.F.R. § 3.156(a); 38 C.F.R. § 3.2400(b). Under the legacy process, a veteran "may reopen a finally adjudicated legacy claim by submitting new and material evidence." 38 C.F.R. § 31.56(a). Here, the Veteran's claim for service connection for bilateral hearing loss was finally adjudicated by a VA Regional Office on August 26, 2015, the date the Veteran was notified of the August 25, 2015, decision denying the petition to reopen the claim for service connection, thus, the "new and material evidence" standard applies. The Veteran's claim for service connection for tinnitus was finally adjudicated by a VA Regional Office on March 5, 2010, the date the Veteran was notified of the February 26, 2010, decision denying the petition to reopen the claim for service connection, thus, the "new and material evidence" standard applies. Regardless of the AOJ's determination as to whether new and material evidence was received, the Board must address the issue in the first instance because it ultimately affects the Board's jurisdiction to adjudicate the underlying claims. See Woehlaert v. Nicholson, 21 Vet. App. 456, 46061 (2007) (citation omitted). The Board must perform a two-step analysis when a veteran seeks to reopen a final decision based on new and material evidence. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the last final disallowance is "new and material." Id. If it is, the Board must then reopen the claim and "evaluate the merits of the veteran's claim in light of all the evidence, both new and old." Id. "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 and must raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). The language of section 3.156(a) "does not require new and material evidence as to each previously unproven element of a claim"; instead, it compels reopening whenever a claimant submits new and material evidence "as to an unestablished fact from the previously denied claim." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In Shade, the Court held that the language of section 3.156(a), requiring the new evidence raise a reasonable possibility of substantiating the claim, is an analytical guide that creates a low threshold rather than a separate element. Id. at 117. In determining whether the low threshold is met, however, VA should consider whether the new and material evidence could, if the claim were reopened, reasonably substantiate the claim, to include triggering VA's duty to assist or through consideration of an alternative theory of entitlement not previously established by the evidence, id. at 11719, but not including "presentation of new arguments based on evidence already of record at the time of the previous decision," Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (emphasis added). "New evidence" "is evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.156(a). VA is required to presume the credibility of newly submitted evidence for the purposes of determining whether that evidence is material and sufficient to reopen a previously denied claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "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." 38 C.F.R. § 3.156(a). Since the respective February 2010 and August 2015 decisions, the Veteran has submitted private medical records addressing his hearing loss and tinnitus. VA has also associated VA medical records with his claims file addressing his hearing loss and tinnitus. Finally, the Veteran has testified before the Board about his hearing loss and tinnitus, which included testimony about the onset, severity, and continuity of his symptoms. The Board finds that all of the foregoing evidence is new and material as it raises a reasonably possibility of substantiating his claims for service connection on appeal. 38 C.F.R. § 3.156(a). Accordingly, the petitions to reopen the claims for service connection for bilateral hearing loss and tinnitus are granted. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. 1. Service connection for bilateral hearing loss 2. Service connection for tinnitus Due to the substantial overlap in facts and legal analyses, the Board will address the Veterans claims for service connection together. First element: A current disability Hearing Loss For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran received a VA audiologic examination in 2008. Puretone threshold results, in decibels, were: HERTZ* A B C D E F G 500* 1000* 2000* 3000* 4000* 6000* 8000* Average (B E) RIGHT 15 15 30 50 60 X X 39 LEFT 15 20 35 55 65 X X 44 An "X" indicates the hearing at that level was not tested. The Veteran's speech discrimination scores (Maryland CNC word list) were: Right Ear 96 % Left Ear 96 % He submitted a private audiologic examination on April 24, 2014. Puretone threshold results (air conduction), in decibels, were: HERTZ* A B C D E F G 500* 1000* 2000* 3000* 4000* 6000* 8000* Average (B E) RIGHT 20 15 40 55 65 60 55 44 LEFT 25 20 45 60 65 80 75 48 Although the evaluator reported speech recognition scores of 92% and 96%, there was no indication that the Maryland CNC word list was used or what ear the percentages corresponded with. Thus, the Board cannot rely on those results. Nevertheless, the Veteran submitted another private audiologic examination dated September 8, 2016. That examiner reported that the Veteran's word recognition scores, using the Maryland CNC word list, were 70% in both ears. Based on the above evidence of record, the Veteran meets VA standards for having bilateral hearing loss based on the Puretone thresholds as well as the speech recognition scores. 38 C.F.R. § 3.385. Therefore, the first element is satisfied. Tinnitus 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, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears during service and that he experienced such ringing ever since service "because ringing in the ears is capable of lay observation"). The Veteran has consistently reported experiencing ringing in his ears. The Board finds no reason doubt his credibility on this issue. Therefore, the Board finds the Veteran has tinnitus, and the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof The Veteran's military occupational specialty (MOS) in the U.S. Air Force was as an airplane aircraft maintenance specialist. The Department of Defense created a Duty MOS Noise Exposure Listing, which is a compilation of Department of Defense-verified lists of MOSs and their respective corresponding probability of hazardous noise exposure. VA adjudicative procedures instruct that if an MOS is shown to have a "High" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing an in-service event with respect to direct service connection. The Veteran's MOS is not specifically listed, but the Board concludes it is most analogous to other aircraft maintenance positions, which are listed as having a "high" probability of in-service noise exposure. Therefore, the Board finds the second element, in-service noise exposure, is satisfied. Third element: A causal link In 2008, a VA examiner opined that he was unable to provide an opinion as to whether the Veteran's hearing loss and tinnitus were attributable to his in-service noise exposure because the Veteran had post-service noise exposure. A 2009 addendum to the 2008 VA examiner's opinion explained that the Veteran's hearing loss was within normal limits at the time of separation from service. Relying on a 2005 Institute of Medicine report about delayed onset hearing, the examiner concluded that there was no scientific basis for concluding that the Veteran's hearing loss that developed after service had its onset in, or was otherwise due to his, military service. The Board cannot afford these opinions any probative value because they failed to take into account the Veteran's lay statements about his continuity of hearing loss and tinnitus symptoms since his separation from service or address his MOS. See Dalton v. Peake, 21 Vet. App. 23, 3940 (2007) (a medical opinion is inadequate if it does not take into account a veteran's reports of symptoms and history, even if recorded in the course of the examination). The Veteran submitted two private opinions from audiologists addressing the etiology of his bilateral hearing loss and tinnitus, one dated October 29, 2015, and another dated September 8, 2016. The October 2015 audiologist opined that the Veteran hearing loss and tinnitus were consistent with the noise exposure he experienced in service. Thus, his hearing loss and tinnitus were more likely than not a result of his military service. The September 2016 audiologist recorded that the Veteran reported experiencing noise exposure without proper hearing protection as part of his MOS. The audiologist opined that the Veteran's hearing loss and tinnitus were most likely sustained as a result of his military service. Although neither examiner documented review of the Veteran's medical records, the Board finds their opinions are credible and probative in light of the Veteran's credible statements about the continuity of his hearing loss and tinnitus symptoms since service. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms). The Board finds no reasonable basis to reject the private audiologists' opinions. Therefore, the Board finds the third element is satisfied. (Continued on the next page) Accordingly, service connection for bilateral hearing loss and tinnitus is granted as each element has been met. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.