Citation Nr: 21072015 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-41 780 DATE: December 2, 2021 ORDER The application to reopen the claim of service connection for bilateral hearing loss is granted. The application to reopen the claim of service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection of tinnitus is granted. FINDINGS OF FACT 1. The Veteran did not perfect the appeal of a September 2005 rating decision that denied service connection for bilateral hearing loss and tinnitus. 2. Newly received evidence is material as it relates to an unestablished fact necessary to substantiate the claim and was not previously considered as to this claim. 3. The Veteran's military occupational specialty exposed her to acoustic trauma in service. 4. The Veteran has had symptoms of hearing loss and tinnitus in and since service. CONCLUSIONS OF LAW 1. The September 2005 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the service connection claims for bilateral hearing loss and tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection of bilateral hearing loss has been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection of tinnitus has been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty in the United States Army from June 1980 to August 1990. In April 2021, the Veteran withdrew her request for a hearing. New and Material Evidence In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the service connection claims for bilateral hearing loss and tinnitus were denied in a September 2005 rating decision on the basis that the medical evidence did not show that the Veteran had a bilateral hearing loss disability pursuant to VA regulations and that her tinnitus was related to service. The Veteran submitted a timely notice of disagreement and a May 2007 statement of the case was issued. The Veteran did not file a VA Form and therefore, the September 2005 rating decision became final. The Veteran has since submitted new and material evidence in the forms of additional medical evidence and lay statements. The claims are considered reopened. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that her bilateral hearing loss had its onset in service. For VA purposes, 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 (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran is currently diagnosed with bilateral sensorineural hearing loss. See April 2015 VA examination report. The Veteran contends that she began to notice hearing loss in service as a result of being exposed to acoustic trauma. The evidence of record reveals that she was a light wheel vehicle mechanic. Moreover, she notes that she was not provided adequate hearing protection and there was an environment where wearing any hearing protection that was provided was not enforced. The Board finds that the Veteran is competent to report her own experience and noise exposure. Moreover, such statements are credible as they are consistent with the nature and circumstances of the Veteran's service. Thus, the Board finds the Veteran's statements to be highly probative. The Veteran was afforded a VA examination in April 2015. The April 2015 examiner opined that the Veteran's hearing loss is less likely than not the result of military service. The examiner noted that the rationale for the opinion was based on the Veteran's July 1990 audiogram which indicated normal hearing in both ears and that the Veteran was released from active military service with normal hearing in both ears. The examiner determined that there was no nexus between today's hearing loss and military service. The Board does not find this VA examination report to be adequate as it does not adequately discuss the Veteran's lay statements of hearing loss in and since service. As the April 2015 VA examination report is not adequate, what remains are the Veteran's competent and credible lay statements that her hearing loss began during active duty service. Thus, after resolving reasonable doubt in the Veteran's favor, the Board finds that bilateral hearing loss is warranted. 38 U.S.C. § 5107, 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus. The Veteran contends that her tinnitus should be service connected as it had its onset in service. The Veteran's lay statements indicate that she has had tinnitus while in service. The Veteran reported ringing noise in her ears during service. The Veteran is competent to report her symptoms of tinnitus as such symptoms are within her lay observation. Her statements are credible as it is consistent with the nature and circumstances of her service. Thus, the Board finds these statements to be highly probative. The April 2015 examiner noted that the Veteran's tinnitus was less likely than not related to service. However, the Board does not find this medical opinion to be probative as the examiner did not adequately consider the Veteran's competent and credible lay statements regarding onset of tinnitus in service. Continued on the next page The Board finds that there is at least an approximate balance of positive and negative evidence with respect to the question of whether tinnitus is related to service. The evidence of record demonstrates that the Veteran has tinnitus, that she was exposed to military noise in service, and that she has experienced tinnitus since service. Therefore, having resolved doubt in favor of the Veteran, service connection for tinnitus is granted. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.