Citation Nr: A21018002 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 181024-675 DATE: November 8, 2021 ORDER New and relevant evidence has been received to warrant readjudication of the claim of entitlement to service connection for bilateral hearing loss. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. New evidence has been received that is relevant to the claim of entitlement to service connection for bilateral hearing loss. 2. The Veteran's tinnitus is etiologically related to service. 3. The Veteran's bilateral hearing loss is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim of entitlement to service connection for bilateral hearing loss are met. See 38 C.F.R. § 3.2501. 2. The criteria for service connection for tinnitus have been met. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for service connection for bilateral hearing loss have been met. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1961 to August 1965. A rating decision was issued under the legacy system in January 2017. The agency of original jurisdiction (AOJ) found that new and material evidence had been received to reopen a prior denial of service connection for tinnitus, but had not been received to reopen a prior denial of service connection for bilateral hearing loss. While the AOJ reopened the claim of service connection for tinnitus, the AOJ continued to deny service connection for this disability. Although the Veteran initially filed a Notice of Disagreement to the January 2017 legacy decision, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), in June 2018, by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. While the legacy system required new and material evidence to reopen a prior denial, the AMA system requires the lower standard of new and relevant evidence. A September 2018 HLR decision, which is the decision on appeal, found that new and relevant evidence had not been received to reopen a prior denial of service connection for bilateral hearing loss. The AOJ made the favorable finding that the Veteran has a current disability of bilateral hearing loss. The Board is bound by this favorable finding unless it is rebutted by evidence showing a clear and unmistakable error. See 38 C.F.R. § 3.104(c). While the AOJ stated that new and relevant evidence had not been received to reopen a prior denial of service connection for tinnitus, this conclusion was erroneous because the rationale never mentioned tinnitus and instead restated the rationale for bilateral hearing loss. Because the September 2018 HLR decision did not properly address the claim of service connection for tinnitus, the Board must characterize the issue(s) on appeal regarding this disability. The January 2017 legacy decision found that new and material evidence had been received to reopen a prior denial of service connection for tinnitus. The Board accepts this finding because it has not been rebutted by clear and unmistakable error. Accordingly, the Board characterizes the issue on appeal as entitlement to service connection for tinnitus. In October 2018, the Veteran requested a RAMP Board appeal and selected the Hearing docket. Therefore, the Board may consider only the evidence of record at the time of the June 2018 RAMP opt-in, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. See 38 C.F.R. § 20.302(a). In October 2021, the Veteran testified before the undersigned at a videoconference hearing. This decision is being rendered prior to the production of a transcript. This decision is also being rendered prior to the completion of the 90-day period to submit additional evidence. As this decision constitutes a full grant of the benefits sought, the Board finds that there is no prejudice to the Veteran in rendering this decision before the production of a hearing transcript or completion of the 90-day period to submit additional evidence. New and relevant evidence has been received to warrant readjudication of the claim of entitlement to service connection for bilateral hearing loss. In a RAMP appeal, a claim previously denied will be readjudicated if new and relevant evidence is received. "New" evidence is evidence not previously submitted to agency decisionmakers, and "relevant" evidence is evidence that tends to prove or disprove a matter in issue. See 38 C.F.R. § 3.2501. The January 2017 legacy decision found that new and material evidence had not been received to reopen a prior denial of service connection for bilateral hearing loss because the evidence submitted had no legitimate influence or bearing regarding service connection. The prior October 2016 legacy decision found no link between the Veteran's bilateral hearing loss and service. The Board finds that evidence submitted after the prior October 2016 legacy decision is new and relevant to the claim. While the claims file contained evidence that the Veteran had hearing loss for years, the Veteran and his wife testified at the October 2021 hearing that the Veteran's hearing loss began during service. This evidence was not already of record at the time of the October 2016 legacy decision and relates to whether the Veteran's hearing loss began during service. Thus, readjudication of the claim is warranted. Service connection, generally Service connection will be granted for a current disability that results from an injury while in service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires medical or competent lay evidence of (1) a current disability; (2) an in-service injury; and (3) a nexus between the current disability and the in-service injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159(a)(2). Entitlement to service connection for tinnitus is granted. The Veteran asserts that service connection is warranted for tinnitus due to noise exposure while working as a weapons mechanic on the flight line during service. The Veteran and his wife testified that the Veteran's tinnitus began during service and has continued since service. The Veteran also provided two medical articles stating that noise from jet engines is extremely damaging to hearing no matter how short the time exposure. The Veteran also stated that he did not know what tinnitus was until 2009. The August 1961 entrance examination documented no abnormalities with the ears. Accordingly, the Board finds that the Veteran was in sound condition at entry to service. The Veteran's service treatment records documented no complaints of tinnitus. The July 1965 separation examination documented no abnormalities with the ears. The Veteran's VA treatment records documented audiology consultations in April 2009 and July 2016. At both consultations, the Veteran reported tinnitus since service. The April 2009 audiologist recommended that the Veteran check into filing a claim for tinnitus due to possible acoustic trauma while on active duty. The Veteran denied tinnitus during Review of Systems (ROS) examinations at other VA sessions. In April 2011, the VA examiner opined that, if tinnitus was present, it was more likely to have occurred after service with the onset of post-service hearing loss. The examiner noted that the Veteran's service treatment records were silent as to tinnitus and that the Veteran did not report tinnitus prior to April 2009. The Board finds that service connection for tinnitus is warranted. A current disability is established based on the Veteran's and his wife's competent and credible statements that the Veteran has experienced tinnitus during the pendency of this appeal. An in-service injury of noise exposure is established by the Veteran's statements and DD 214 showing a military occupational specialty that is associated with exposure to loud noises. Finally, a nexus between the Veteran's tinnitus and his exposure to noise during service is established based on the probative evidence of record, to include the Veteran's and his wife's competent and credible statements, the medical articles submitted by the Veteran, and the April 2009 VA audiologist's recommendation. The Board accords little probative weight to the VA examiner's opinion because the examiner improperly relied on the absence of evidence in the Veteran's service treatment records and VA records. Unlike the audiological consultations that fully explored the Veteran's tinnitus, the nature of the ROS examinations is unknown, and the Veteran explained that he did not know what tinnitus was until 2009. In sum, the Board finds that the evidence of record is sufficient to show a nexus between the Veteran's tinnitus and noise exposure during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Accordingly, the Board finds that the criteria for service connection have been met. See 38 C.F.R. § 3.303. Entitlement to service connection for bilateral hearing loss is granted. The Veteran asserts that service connection is warranted for bilateral hearing loss due to noise exposure while working as a weapons mechanic on the flight line during service. The Veteran and his wife testified that the Veteran's hearing loss began during service and has worsened since service. The Veteran also provided two medical articles stating that noise from jet engines is extremely damaging to hearing no matter how short the time exposure. Hearing loss will be considered a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Board notes that service audiograms were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units during different periods. Prior to January 1, 1967, audiometric results must be converted from ASA to ISO-ANSI units. Conversion to ISO-ANSI units is accomplished by adding 15 dB to the ASA units at 500 Hertz; 10 dB at 1000, 2000, and 3000 Hertz; and 5 dB at 4000 Hertz. The results of the August 1961 entrance examination must be converted from ASA units to ISO-ANSI units as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 0 (10) Not recorded -5 (0) LEFT 5 (20) 5 (15) 0 (10) Not recorded -5 (0) The Board finds that the Veteran was in sound condition at entry to service because the converted audiometric results do not show a hearing loss disability under 38 C.F.R. § 3.385. The Veteran's service treatment records documented no complaints of bilateral hearing loss. The results of the July 1965 separation examination must be converted from ASA units to ISO-ANSI units as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) The Veteran's VA treatment records documented audiology consultations in April 2009 and July 2016. At the April 2009 consultation, the Veteran reported decreased bilateral hearing for years; the VA audiologist recommended that the Veteran check into filing a claim for hearing loss due to possible acoustic trauma while on active duty. At the July 2016 consultation, the Veteran reported worsening hearing since the April 2009 consultation. In August 2009, the VA examiner opined that it was less likely than not that the Veteran's hearing loss was due to acoustic trauma during service. The examiner stated that the Veteran had normal hearing at separation and that the Veteran's current hearing loss was more likely due to post-service noise exposure, aging, and familial factors. The Board finds that service connection for bilateral hearing loss is warranted. A current hearing disability loss is established by the favorable finding in the September 2018 HLR decision. An in-service injury of noise exposure is established by the Veteran's lay statements and DD 214 showing a military occupational specialty that is associated with exposure to loud noises. Finally, a nexus between the Veteran's bilateral hearing loss and his exposure to noise during service is established based on the probative evidence of record, to include the Veteran's and his wife's competent and credible statements, the medical articles submitted by the Veteran, and the April 2009 VA audiologist's recommendation. The Board accords little probative weight to the VA examiner's opinion because the examiner improperly relied on the normal audiometric results at separation and did not properly consider the Veteran's lay statements. In sum, the Board finds that the evidence of record is sufficient to show a nexus between the Veteran's bilateral hearing loss and noise exposure during service. See Jandreau, 492 F.3d at 1376. Accordingly, the Board finds that the criteria for service connection have been met. See 38 C.F.R. § 3.303. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.