Citation Nr: 21073336 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-11 481 DATE: December 8, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. New and material evidence having been received, the petition to reopen 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. An unappealed October 2010 rating decision denied the claims of entitlement to service connection for bilateral hearing loss and tinnitus based on a finding that the persistent disability was not present in service and was not otherwise etiologically related to his active service. 2. The evidence associated with the claims file subsequent to the October 2010 rating decision is not cumulative nor redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 3. Resolving all doubt in favor of the Veteran, his bilateral hearing loss and tinnitus are etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. The October 2010 rating decision denying the claim for service connection for bilateral hearing loss is final; new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 2. The October 2010 rating decision denying the claim for service connection for tinnitus is final; new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 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, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to September 1970, to include service in the Republic of Vietnam. The Veteran's awards and decorations for his service include a Purple Heart and Combat Infantryman Badge among others. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Huntington, Alabama. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2021. A hearing transcript is not yet available but will be added to the Veteran's file under the normal course of business. Petitions to Reopen As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 neither be cumulative or 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. 38 C.F.R. § 3.156. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claims for service connection for bilateral hearing loss and tinnitus were originally denied in an October 2010 rating decision based on a finding that the evidence failed to establish a nexus between his bilateral hearing loss and tinnitus and any disease or injury during active service. Evidence considered in this rating decision included the Veteran's service treatment records, the Veteran's claim, post-service VA treatment records, and an October 2010 VA examination report. In November 2010, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claims for entitlement to service connection for bilateral hearing loss and tinnitus was received until September 2017, when VA received a petition to reopen such claims. Therefore, the October 2010 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from October 2010 rating decision. See also Lang v. Wilkie, 971 F.3d 1348 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran filed the instant petition to reopen his claims for entitlement to service connection for bilateral hearing loss and tinnitus, which was received by VA in September 2017. The pertinent evidence that has been received since the October 2010 rating decision includes continuing post-service treatment records, March 2019 and September 2020 private etiology opinions, and December 2021 Board hearing testimony. Presuming the credibility of the March 2019 and September 2020 private etiology opinions and the Veteran's sworn testimony before the Board, the Board finds that the evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral hearing loss and tinnitus. The claims for service connection for bilateral hearing loss and tinnitus were previously denied because there was no evidence showing that such conditions were etiologically related to active service. However, the March 2019 and September 2020 private opinions opine that the bilateral hearing loss and tinnitus appear to be related to his active service. Accordingly, reopening of the claims of entitlement to service connection for bilateral hearing loss and tinnitus is warranted. Service Connection Claims The Veteran asserts that he has bilateral hearing loss and tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran asserted he experienced great pain in both ears when landing in a "hot" zone in the Republic of Vietnam. See VA Form 21-4138 Statement in Support of Claim, September 7, 2010. Additionally, the Veteran reported that during active service he was exposed to hazardous noise during his service in the Republic of Vietnam. See VA Form 21-4138 Statement in Support of Claim, September 22, 2017. Further, the Veteran indicated he was exposed to hazardous noise exposure in the form of landing on a land mine and gun fire on several occasions in the Republic of Vietnam. See Notice of Disagreement, March 5, 2018; December 2021 Board hearing testimony. The Board notes the Veteran's awards and decorations for his service include a Purple Heart and Combat Infantryman Badge, and his DD Form 214 shows his military occupational specialty (MOS) included light weapon infantry. Therefore, the Board finds that the Veteran's report of noise exposure during service is consistent with his service and his MOS. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as organic diseases of the nervous system, are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. If the veteran engaged combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Every reasonable doubt must be resolved in the Veteran's favor, and service connection of injuries or diseases linked to combat may be rebutted only by clear and convincing evidence. 38 U.S.C. § 1154(b). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the question of whether there is an etiological relationship between the Veteran's service and bilateral hearing loss and tinnitus, the Board notes that the record contains three etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board will consider each of these opinions below. In October 2010, the Veteran was afforded a VA audiological examination. At that time, the examiner diagnosed bilateral hearing loss for VA purposes and tinnitus. 38 C.F.R. § 3.385. The examiner opined that the Veteran hearing loss and tinnitus were less likely than not etiologically related to his active service. In this regard, the examiner noted the discharge examination in August 1970 showed normal bilateral hearing and the enlistment examination in September 1968 showed mild hearing loss in the right ear. The examiner indicated that this "does not make sense," and therefore, after relying on the normal hearing upon separation, the examiner opined the Veteran's hearing loss and tinnitus were not due to military service as an infantryman. The Board finds this opinion inadequate to decide the claim. In this regard, the October 2010 VA examiner failed to adequately address the Veteran's statements and contentions, namely, that his combat and hazardous noise exposure caused his bilateral hearing loss and tinnitus. Additionally, the examiner failed to provide supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Rather, the examiner provided only conclusory statements that the discrepancy between entrance and separation examination audiograms did not make sense, and therefore, relied solely on his normal hearing upon discharge when rendering the opinion. Therefore, this opinion is afforded little, if any probative weight. Of record is a March 2019 private etiology opinion completed by Dr. C.M. At that time, Dr. C.M. opined that the Veteran's bilateral hearing loss appeared to be a noise induced hearing loss, and that the Veteran was a relatively healthy patient that did not have sign s of auditory deprivation. The Board finds this opinion inadequate to decide the claim. In this regard, Dr. C.M. failed to provide supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, supra; Stefl v. Nicholson, supra. Therefore, this opinion is afforded little, if any probative weight. Of record is a September 2020 private etiology opinion completed by Dr. C.M. At that time, Dr. C.M. opined that the Veteran's severe to profound noise induced bilateral sensorineural hearing loss and tinnitus were caused by or the result of direct exposure to an explosion as well as infantry military combat. In this regard, Dr. C.M. noted the Veteran was directly exposed to an explosion during combat where guns were shot repetitively in short and close proximity to the Veteran. Therefore, Dr. C.M. concluded that such hazardous noise exposure would have an impact on the Veteran's hearing loss. The Board finds the September 2020 private etiology opinion to be highly probative. This opinion also had clear conclusions and supporting data, as well as reasoned medical explanations connected the Veteran's bilateral hearing loss and tinnitus to his service. Nieves-Rodriguez v. Peake, supra. Additionally, Dr. C.M. took into consideration the circumstances of the Veteran's service, his statements and contentions, when relating his bilateral hearing loss and tinnitus to active service. This opinion is being afforded great probative weight. There is no contrary probative opinion of record. In sum, the Veteran has a current diagnoses of bilateral hearing loss for VA purposes and tinnitus. There is only one probative etiology opinion of record, which is in support of the Veteran's claims for entitlement to service connection. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claims. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the Board finds that the preponderance of the evidence is for the claims and entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.