Citation Nr: A21018024 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 211021-192312 DATE: November 9, 2021 ORDER As new and relevant evidence was received, the request to readjudicate a claim for service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is denied. FINDINGS OF FACT 1. New and relevant evidence was received sufficient to readjudicate the claim for service connection for bilateral hearing loss. 2. The competent and probative evidence shows that the Veteran's current bilateral hearing loss for VA purposes is related to his in-service acoustic trauma. 3. The preponderance of the evidence of record is against finding that the Veteran has had tinnitus at any time during the claim or approximate to the filing of this claim. CONCLUSIONS OF LAW 1. The criteria to readjudicate the claim for service connection for bilateral hearing loss are met. 38 C.F.R. §§ 3.156(d), 3.2501. 2. 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, 3.309, 3.385. 3. The criteria for service connection for tinnitus are not 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 from August 1955 to August 1957. In a March 2021 rating decision, the RO denied the Veteran's October 2020 claim for service connection for tinnitus and bilateral hearing loss. Regarding bilateral hearing loss, the RO determined that new and relevant evidence had not been submitted to readjudicate the claim. In October 2021, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal to appeal his claim to the Board of Veterans' Appeals (Board) and selected the Direct Review lane. Therefore, the Board may only consider the evidence of record at the time of the March 2021 decision on appeal. 38C.F.R. § 20.301. Favorable finding contained in the March 2021 rating decision were noted as the Veteran having a current disability of bilateral hearing loss for VA purposes and the record established acoustic trauma based on the circumstances of his active service. The Board sees no reason to disturb these favorable findings. 38 C.F.R. § 3.104(c). 1. Whether new and relevant evidence has been submitted to reopen the claim for entitlement to service connection for bilateral hearing loss. VA will readjudicate a claim if new and relevant evidenced is presented or secured in conjunction with a supplemental claim. See 38 C.F.R. § 3.156(d). "New evidence" is evidence not previously part of the actual record before agency adjudicators. "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. See 38 C.F.R. § 3.2501(a)(1). The evidentiary record for a supplemental claim includes all evidence received by VA before VA issues notice of a decision on the supplemental claim. For VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision. 38 C.F.R. § 3.2501(b). The Veteran's claim for service connection for bilateral hearing loss was initially denied in a January 1972 rating decision based on a finding that bilateral hearing loss was not due to or related to the Veteran's service, based on October 1971 VA examiner's opinion. No appeal was filed, and no evidence was received within one year of that decision. Accordingly, the January 1972 rating decision became final. Service connection was denied again in August 1996 rating decision on the basis that new and material evidence had not been submitted. Subsequently, the Veteran filed a claim to reopen the claim for bilateral hearing loss in February 2021 and which was denied in a March 2021 rating decision based on a finding that new and relevant evidence had not been submitted to readjudicate the claim. Thus, the question for the Board is whether the Veteran has submitted new and relevant evidence since the August 1996 rating decision sufficient to readjudicate the claim. Since the August 1996 decision, the Board finds that new and relevant evidence has been submitted regarding the claim of bilateral hearing loss. Specifically, a March 2021 VA audiological examination which tends to disprove a matter in issue. As such, the request to readjudicate the claim for service connection for bilateral hearing loss is granted. Service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 2. Entitlement to service connection for bilateral hearing loss In a claim of service connection for impaired hearing, demonstration of the first Holton element, i.e., the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; 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. 38 C.F.R. § 3.385. Service connection for certain diseases, such as an organic disease of the nervous system, including sensorineural hearing loss, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101 ,1112; 38 C.F.R. §§ 3.309(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss is considered an organic disease of the nervous system, and as such is an enumerated chronic disease. A March 2021 VA examination report shows that after an examination of the Veteran and review of the claims file, that the examiner opined that it was less likely than not the hearing loss disability was related to active service. The VA examiner noted that service treatment records showed passing of 15/15 whisper exam on enlistment and separation. The examiner remarked that unfortunately, audiometric data was not available for enlistment and separation examinations, therefore threshold shifts could not be ascertained. The examiner noted that there was no objective evidence of noise injury during military service or of diagnosis or complaints of hearing problems be found in service treatment records and no report of hearing loss was shown in the 60+ years since separating from military service. However, the Board notes that an October 1971 VA examination report shows that the Veteran was diagnosed with hearing loss, therefore the 2020 VA examiner's rationale that the Veteran did not have hearing loss in the 60 years since separation from service, shows that the opinion was based on an inaccurate factual basis. As such it is of a lower probative value and weight. After review of the competent and probative evidence, the Board concludes the evidence is at least in equipoise that the Veteran's bilateral hearing loss is related to his noise exposure in service. The above noted VA examination report shows that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. However, the 2021 VA examiner provided a negative nexus opinion. The Veteran has competently and credibly testified that his hearing loss began soon after service because of his military noise exposure. 38 C.F.R. §§ 3.303(b), 3.309(a). Additionally, there is a VA examination report showing that he had the same type of hearing loss in 1971. Such evidence tends to support a finding of continued hearing loss after service. As the evidence has strengths and weakness, the Board finds that they balance out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). Therefore, when resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise that the Veteran's current bilateral hearing loss for VA purposes is related to acoustic trauma exposure in service. This, combined with the Veteran's hearing problems since service for his sensorineural hearing loss, place the evidence regarding the nexus into equipoise on this material issue. 38 U.S.C. § 5107(b). As such, the Board finds that service connection for bilateral hearing loss is warranted. 38 C.F.R. § 3.303. 3. Entitlement to service connection for tinnitus The threshold consideration for any service connection claim is the existence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim or proximate to the filing of it. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnosis of tinnitus. However, as noted above, the record contains a favorable finding of acoustic trauma due to the circumstances of the Veteran's active service. Post-service VA treatment records are silent for any complaints, findings, treatment, or diagnosis of tinnitus or mention of ringing in the ears. During a March 2021 VA examination, the examiner indicated tinnitus was explained to the Veteran and the Veteran reported no ringing, buzzing, humming, crickets, or any noises in ears/head. Therefore, the examiner remarked that the Veteran did not have a diagnosis of tinnitus. Although the Veteran is competent to report having tinnitus, the Board finds the statements made to the VA examiner in March 2021 tends to support a finding that he does not have tinnitus. As such, the March 2021 VA examination report weighs against the Veteran's claim for entitlement to service connection for tinnitus. (Continued on the next page) In sum, for the period on appeal, there is no competent and credible evidence that the Veteran has a current tinnitus disorder. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no evidence of any current diagnosis or reported symptoms of tinnitus. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim is denied. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.