Citation Nr: 21077078 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-55 028 DATE: December 28, 2021 ORDER The claim for service connection for hearing loss is reopened and to this extent only, the appeal is granted. The claim for service connection for tinnitus is reopened, and service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A September 2010 rating decision denied the Veteran's claim of entitlement to service connection for bilateral hearing loss, and the Veteran did not appeal the decision. 2. A March 2014 rating decision denied reopening the Veteran's claim for entitlement to service connection for bilateral hearing loss, and the Veteran did not appeal the decision. 3. The evidence added to the record since the March 2014 rating decision denying entitlement to service connection for bilateral hearing loss is neither cumulative nor redundant of the evidence of record at the time of the decision, and it raises a reasonable possibility of substantiating the Veteran's claim. 4. A September 2010 rating decision denied the Veteran's claim of entitlement to service connection for tinnitus, and the Veteran did not appeal the decision. 5. A March 2014 rating decision denied reopening the Veteran's claim for entitlement to service connection for tinnitus, and the Veteran did not appeal the decision. 6. The evidence added to the record since the March 2014 rating decision denying entitlement to service connection for tinnitus is neither cumulative nor redundant of the evidence of record at the time of the decision, and it raises a reasonable possibility of substantiating the Veteran's claim. 7. There is at least an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus began in service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1973 to November 1976 and from March 1977 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) from a decision by the Department of Veterans Appeals (VA) Agency of Original Jurisdiction (AOJ). The Board notes that the Veteran submitted a VA Form 10182 for a June 2020 decision regarding reductions to his disability rating of his right and left knee strains. That matter will be adjudicated at a later date under the recently enacted Appeals Modernization Act in docket order. New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Regardless of the AOJ's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). 1. Bilateral Hearing Loss The Board finds new and material evidence has been received sufficient to reopen the Veteran's claim for service connection for bilateral hearing loss. A September 2010 rating decision denied the Veteran's claim for service connection for bilateral hearing loss because the AOJ found that the Veteran did not have hearing loss for VA compensation purposes in the right ear and his left ear hearing loss was not etiologically related to service. The Veteran did not appeal, and new and material evidence was not received within the following one-year period; thus, the September 2010 rating decision is final. A March 2014 rating decision denied reopening the claim for entitlement for service connection for bilateral hearing loss because the AOJ found that new and material evidence was not submitted. The Veteran did not appeal, and new and material evidence was not received within the following one-year period; thus, the March 2014 rating decision is final. Since the March 2014 decision, new evidence has been added to the claims file. Pertinent to this claim includes post-service treatment records, statements by the Veteran, and the Veteran's December 2020 testimony. The post service treatment records indicate the Veteran was fitted for hearing aids in May 2015. In the Veteran's statements and testimony, the Veteran indicated that his hearing loss began in service. The treatment records, statements, and testimony are new and material evidence. The evidence is not redundant of previously considered evidence and therefore new. The evidence is material because it goes to the unestablished fact of a current hearing loss disability and its onset during service. Therefore, the treatment records, statements, and testimony are new and material evidence and sufficient to reopen the Veteran's previously denied claim. In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because the Veteran has provided new and material evidence, reopening this claim is in order. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 2. Tinnitus The Board finds new and material evidence has been received sufficient to reopen the Veteran's claim for service connection for tinnitus. A September 2010 rating decision denied the Veteran's claim for service connection for bilateral hearing loss because the AOJ found that the Veteran's tinnitus was not etiologically related to service. The Veteran did not appeal, and new and material evidence was not received within the following one-year period; thus, the September 2010 rating decision is final. A March 2014 rating decision denied reopening the claim for entitlement for service connection for tinnitus because the AOJ found that new and material evidence was not submitted. The Veteran did not appeal, and new and material evidence was not received within the following one-year period; thus, the March 2014 rating decision is final. Since the March 2014 decision, new evidence has been added to the claims file. Pertinent to this claim includes statements by the Veteran and his December 2020 testimony in a Board hearing. In the Veteran's statements and testimony, the Veteran indicated that his hearing loss began in service. The statements, and testimony are new and material evidence. The evidence is not redundant of previously considered evidence and therefore new. The evidence is material because it goes to the unestablished fact of a current tinnitus disability and its onset during service. Therefore, the statements and testimony are new and material evidence and sufficient to reopen the Veteran's previously denied claim. In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because the Veteran has provided new and material evidence, reopening this claim is in order. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Service Connection The Veteran contends that his tinnitus began in service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, such as an organic disease of the nervous system (which includes tinnitus), becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence that there were characteristics manifestations of the disease to the required degree during that time. Id. 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 as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). The second and third elements outlined above may be established by showing continuity of symptomatology for certain specified diseases. Continuity of symptomatology may be shown by demonstrating "(1) that a chronic disease was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Veteran contends that his tinnitus began in service and is related to his noise exposure in service. The Veteran's DD-214 and related records indicates his military occupational specialty of helicopter repairman and portable air defense system crewmember. Therefore, the Board finds the Veteran's contentions that he experienced hazardous noise in service to comport with his military specialty and are competent and credible. Thus, the Board concedes that the Veteran had in-service noise exposure. The Veteran's service treatment records do not document any complaint, treatment, or diagnosis of tinnitus. In September 2010, the Veteran underwent a VA audiological examination. The Veteran reported during service he was on a helicopter crew for three years and then in the air defense. The Veteran reported he had noise exposure of helicopters, track vehicles, tanks, artillery, M16s, grenades ranges, and stinger weapons. The examiner noted that the Veteran had a current complaint of tinnitus. The Veteran reported the tinnitus was constant and began 3 to four years ago. The examiner stated that the Veteran's tinnitus was as likely as not a symptom associated with hearing loss. The examiner opined that the Veteran's tinnitus is less likely than not a result of his military noise exposure. The examiner reasoned that the Veteran reported his tinnitus began approximately 4 years ago; however, he was exposed to helicopters, track vehicles, tanks, artillery, M16s, grenades ranges, and stinger weapons while in service. In December 2020, the Veteran testified in a Board hearing. The Veteran testified that his tinnitus began in service. The Board finds that the competent and credible evidence is in equipoise as to whether the Veteran's tinnitus began upon leaving service, has been recurrent since then, and still exists. The Board finds that the Veteran's statements regarding the noise exposure in service and experiencing tinnitus symptoms while in service competent and credible. The Veteran is competent to testify as to observable symptoms such a ringing in the ears. See Charles v. Principi, 16 Vet. App. 370 (2002) (the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation.). The Board finds the Veteran's statements to be sufficient proof of this in-service injury and recurrent symptoms. The Veteran's lay statements are found to be credible and are confirmed by the circumstances of his service. See, e.g., 38 U.S.C. § 1154(a). Therefore, based on a careful review of the entire record, the Board finds that the most probative evidence establishes that the Veteran's current tinnitus as likely as not is due to the Veteran's exposure to noise in active service and that the tinnitus began during active service. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is granted. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is related to noise exposure. In September 2010, the Veteran underwent a VA audiological examination. The results of the examination demonstrated the Veteran had hearing loss for VA compensation purposes in his left ear, but not in his right ear. See 38 C.F.R. § 3.385. The examiner opined that the Veteran's hearing loss identified was not a result of his military noise exposure. The examiner reasoned that the Veteran entered and exited service with normal hearing. The Board finds that a remand is required. First, the Board notes that since September 2010, it appears that the Veteran's hearing loss had worsened. The Veteran was provided hearing aids in May 2015. Therefore, an examination is required to determine the current severity of the Veteran's hearing loss. See generally Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). Second, the September 2010 examiner's rationale regarding the Veteran's left ear hearing loss is inadequate for adjudication. In Hensley v. Brown, the United States Court of Appeals for Veterans Claims made clear that a lack of objective evidence of hearing loss during military service, or at separation from service, is not fatal to a service connection claim. 5 Vet. App. 155, 157 (1993). Therefore, a remand of the claim for bilateral hearing loss is required to obtain an opinion compliant with Hensley. The matters are REMANDED for the following action: 1. Schedule a VA audiological examination to determine the nature and etiology of the Veteran's hearing loss. The examiner must provide the following opinions: Whether the Veteran has a current diagnosis of hearing loss pursuant to 38 C.F.R. § 3.385. Whether it is at least as likely as not the any diagnosed hearing loss was caused by or had its onset in service, or manifested itself within one year of active duty. The examiner must address the significance, if any, of any puretone threshold shift between the entrance examination into active duty and the separation examination from active duty. A complete rationale for all expressed opinions should be provided. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.