Citation Nr: 21073827 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-65 835 DATE: December 10, 2021 ORDER The appeal to reopen the claim to entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACTS 1. In a May 1979 rating decision, the Veteran's claim for service connection for bilateral hearing loss was denied. The decision was not appealed, and no new and material evidence was submitted within a year of that decision. 2. Evidence received since the May 1979 rating decision that relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss is neither cumulative nor redundant of the evidence already of record. 3. The evidence of record shows that the Veteran sustained bilateral hearing loss in service which has continued ever since. 4. The Veteran's tinnitus began during his military service and has continued since. CONCLUSIONS OF LAW 1. The May 1979 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria to reopen the Veteran's claim for service connection for bilateral hearing loss based on the receipt of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to July 1977. The Board is cognizant that the Veteran is currently incarcerated. This matter is on appeal from a November 2014 rating decision and was previously remanded by the Board in April 2019. Reopening a Claim Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to the general rule allows for reopening where new and material evidence exists. 38 U.S.C. § 5108; Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence means 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 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. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Id. The Veteran's claim for entitlement to service connection for hearing loss was initially denied in May 1979 as the Veteran failed to appear for his examination. That decision became final since the Veteran did not timely file an appeal or submit new and material evidence within a year of notification of that decision. Thus, for the matter to be reopened, new and material evidence is required. Since the May 1979 rating decision, new and material evidence has been received, including statements from the Veteran received in September 2021 that indicate his current hearing loss began in service and has continued ever since. The Board finds that the evidence added to the record since the May 1979 rating decision raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. As new and material evidence has been received, the Veteran's service connection claim for bilateral hearing loss is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Bilateral Hearing Loss Hearing loss, if sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran contends that he developed bilateral hearing loss as a result of significant noise exposure during his military service. He asserted that prior to entering service, his hearing was normal with no ringing in his ears. However, during service, he was exposed to constant loud hazardous noises that were enough to result in some hearing loss and tinnitus. Because of this he was prevented from attending the Sonar school that he had enlisted for. Ever since his discharge, his hearing has been worsening. September 2021 Correspondence. A review of the Veteran's service records showed that his MOS was a radio mechanic. His service treatment records noted an incomplete audiogram upon entry. However, he was found qualified for active duty. In December 1975, the Veteran complained of hearing problems with dull and throbbing sensation in his ears. In January 1976, the Veteran was seen for mild sensorineural hearing loss. Audiograms in December 1975 and April 1976 documented poor hearing in both the left and right ear. The physician recommended that he wear ear plugs. Upon separation, the Veteran's audiometric readings revealed abnormal hearing. VA has since conceded to in-service noise exposure due to his duties. The Board notes that shortly after service, the Veteran attempted to file a service connection for his bilateral hearing loss in 1979, which was denied when did not appear for an examination. The Veteran was later incarcerated in August 1998 and is not scheduled to be released until 2028. While he has been examined for other conditions in prison, a hearing examination could not be conducted. A VA internal memorandum noted that VHA was unable to send an audiologist to the prison to conduct a hearing test as it requires specialty equipment that cannot be transported. See August 2014 VA -210820 Report of General Information. Additionally, the correctional facility will not transport the Veteran to a VA examination outside the facility. In April 2019, the Board remand noted that the Veteran indicated that the facility was willing to conduct a hearing examination for him in house and fax the results to the AOJ. He was given an additional 90 days to submit relevant medical evidence supporting his bilateral hearing loss. The Board specified that any such medical opinion must be conducted by a qualified clinician and that his or her conclusion must be supported by adequate rationale. In support of his claim, the Veteran submitted a Whisper Test, which was conducted in September 2021 by a fellow inmate. The Board, however, finds that Whisper tests are inadequate for the evaluation of noise induced hearing loss. VA require that audiometric readings for VA purposes must comply with the Maryland CNC Test. In reviewing the evidence of record, the Board finds that the Veteran's claims file contains sufficient evidence that the Veteran has bilateral hearing loss. Multiple in-service audiograms document bilateral hearing loss, including those in December 1975 and January 1976 which indicated bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. The Board notes that hearing loss is not a disability which improves over time. Overall, the Board finds that the evidence of record indicates that the Veteran sustained hearing loss in service and that it continued ever since. Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b). The Veteran is competent to report the occurrence of such symptoms as they are within his realm of personal and firsthand knowledge. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Of significance to the Board in this matter are the facts that the Veteran's credible reports of in-service noise exposure are consistent with the circumstances of his service. Accordingly, service connection for bilateral hearing loss is granted. Tinnitus The Veteran stated that his tinnitus began in service when he worked with radio mechanic. He recalled that prior to service, he did not have any ringing in his ears. After serving on the USS Sierra, where he was constantly exposed to loud noises, he suffered hearing loss and ringing in his ears. The symptoms were so severe that it prevented him from attending the Sonar school he previously enlisted for. Since his discharge from service, his ringing has since gotten worse, making it difficult for him to sleep at night. See October 2021 Correspondence. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss and ringing in the ears. Therefore, the Veteran's lay opinion could possibly be sufficient to serve as the required nexus for his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Given the Veteran's MOS and his statements, the Board concedes to some level of noise exposure experienced by the Veteran in service. With his records and his reports that the ringing continued after service, the Board finds that there is sufficient evidence to establish service connection for tinnitus. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, 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.