Citation Nr: 21077249 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-12 201 DATE: December 29, 2021 ORDER The Veteran's application to reopen the claim of service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. In January 2006, the Veteran was notified that VA denied service connection for bilateral hearing loss. The Veteran was informed in writing of the adverse determination and his appellate rights and did not submit a notice of disagreement (NOD) with the decision. 2. The January 2006 rating decision is final. 3. The additional documentation submitted since the January 2006 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim of service connection for bilateral hearing loss. 4. Tinnitus began in service and has continued since that time. 5. The Veteran's bilateral hearing loss was caused by in-service exposure to hazardous noise. CONCLUSIONS OF LAW 1. The January 2006 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for bilateral hearing loss has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from February 1968 to February 1970. In January 2021, the Veteran was afforded a virtual hearing before the undersigned Veterans Law Judge. 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss. Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claim without regard to the RO's determination to establish the Board's jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In January 2006, VA denied service connection for bilateral hearing loss because there was no evidence of in-service treatment for hearing loss and because the Veteran did not have hearing loss that met the requirements of a disability under 38 C.F.R. § 3.385. The Veteran was informed in writing of the adverse decision and did not submit an NOD. New and material evidence pertaining to the issue of service connection for bilateral hearing loss was not received by VA or constructively in its possession within one year of written notice to the Veteran of the January 2006 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional documentation received since the January 2006 rating decision includes VA treatment records, VA examinations reports and medical opinions, Board hearing testimony, medical opinions from the Veteran's VA treating otolaryngologist, statements from historians about in-service noise exposure, and statements from the Veteran. The record now contains a diagnosis of sensorineural hearing loss that meets the requirements of a disability under 38 C.F.R. § 3.385. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Here, without examination of any other evidence of record, the newly-submitted evidence is of such significance that, when considered for the limited purpose of reopening the Veteran's claim, it raises a reasonable possibility of substantiating his claim for service connection when considered with the previous evidence of record. As new and material evidence has been received, the Veteran's claim is reopened. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Organic diseases of the nervous system, including hearing loss and tinnitus, are "chronic diseases" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275 76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. 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 as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). 2. Entitlement to service connection for tinnitus. The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran's service treatment records do not refer to tinnitus or ringing of the ears. The Veteran's service records reflect that he served as a medic and in the 3rd Armored Division. He reported in-service exposure to noise from ambulances, tanks, and artillery firing on test ranges. In September 2014, a VA otolaryngologist stated that he had in-service exposure to hazardous noise based on his reported exposure and the nature of his service. His service duties are consistent with acoustic trauma. See 38 U.S.C. § 1154(a). The Veteran has repeatedly reported that he did not have post-service noise exposure. At his January 2021 Board hearing, he reported short-term work with city government, work as a handyman, small-scale construction, and emergency medical technician (EMT) work. He stated that, for the last 20 years, he had worked as a massage therapist. He stated that none of his post-service jobs exposed him to hazardous noise. A March 2014 VA treatment record states that the Veteran reported constant ringing in his ears since 1968, and that he had complaints of tinnitus. On a May 2014 Statement in Support of Claim, the Veteran reported that tinnitus began in service intermittently when he was exposed to hazardous noise and has since become constant. At his January 2021 Board hearing, the Veteran stated that tinnitus began in 2013. The Veteran has reported both that tinnitus began in service and has continued since that time, and that it began after service. The Veteran is competent to report the onset of tinnitus. The evidence is at least in equipoise as to whether tinnitus began in service or after service and, affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted, and the appeal is granted. 3. Entitlement to service connection for bilateral hearing loss. Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran has a diagnosis of sensorineural hearing loss that meets the requirements of a disability under 38 C.F.R. § 3.385. The Veteran's November 1969 physical examination for service separation indicates that the Veteran's ears and ear drums were normal. It is unclear whether the audiological examination conducted at that time was completed using the American Standards Association (ASA) standards or the International Standards Organization-American National Standards Institute (ISO ANSI) standards; under both standards, however, the Veteran's hearing was normal. As discussed above, the Veteran had in-service exposure to hazardous noise. On his August 2005 application for service connection, he stated that hearing protection was not provided or worn. A September 2021 VA examination report states that in service noise exposure was conceded. In November 2005, the Veteran was afforded a VA examination. Audiometric testing indicated hearing loss at 8000 Hertz in the right ear and at 6000 Hertz in the left ear. The audiologist stated that the hearing loss was caused by in-service acoustic trauma. A March 2014 VA treatment record states that the Veteran had reduced hearing in both ears which began in 1968 and had a gradual onset. In a May 2014 statement, the Veteran reported that he temporary deafness while in service following exposure to tanks and artillery firing. An August 2014 VA medical opinion from an audiologist states that the Veteran's hearing loss was not caused by service because his hearing was normal at service separation. This opinion is inadequate and of no probative value. See e.g., Hensley v. Brown, 5 Vet. App. 155, 159 160 (1993). A September 2014 VA otolaryngology note states that the Veteran had in-service exposure to ambulance noise, as well as from Howitzers, rockets, and tanks; that he had a temporary threshold shift in service because of this noise; and that he had no significant civilian noise exposure. In August 2015, the Veteran's VA treating otolaryngologist stated that the Veteran's hearing loss was caused by in-service exposure to hazardous noise. On his January 2018 NOD, the Veteran discussed a study that found that noise-induced hearing loss can cause permanent damage that is only measurable over time. He also stated that in-service acoustic trauma repeatedly left him deaf for a day or two at a time. In September 2017, the Veteran's VA treating otolaryngologist reviewed his file and completed a disability benefits questionnaire (DBQ). He stated that the Veteran had sensorineural hearing loss, and that the Veteran experienced a temporary threshold shift while in service but that his separation audiogram was normal. He stated that he was a retired U.S. Navy ear nose and throat (ENT) doctor and "that hearing loss often presents at frequencies not tested or considered by the military in the past," and that the Veteran had military noise exposure while in service. In April 2018, the Veteran's VA treating otolaryngologist provided another medical opinion. He stated that the Veteran's current hearing loss was caused by in-service exposure to hazardous noise. He stated that, although the Veteran's hearing was normal at service separation, "[r]esearch has shown that noise damages the neural networks in the cochlea and this synaptopathy is not detectable by audiograms." He stated that the study of cochlear synaptopathy is ongoing but is now being recognized by the military. He cited a 2017 Military Medicine journal article titled "Hidden Hearing Injury: The Emerging Science and Military Relevance of Cochlear Synaptopathy." In September 2021, the Veteran was afforded another VA examination. He was diagnosed with bilateral sensorineural hearing loss. The audiologist stated that the Veteran had in-service noise exposure but opined that it did not cause the Veteran's hearing loss because his hearing was normal at service separation and because the "first documented complaints of hearing loss was" at the November 2005 examination. She did note, however, that the Veteran had intermittent hearing loss in service. Therefore, these two statements conflict. Additionally, hearing loss at service separation is not necessary for a grant of service connection. See 38 C.F.R. § 3.303(d); Hensley, 5 Vet. App. at 159 160. Therefore, this opinion is inadequate and of no probative value. A September 2021 addendum opinion states that the Veteran's hearing loss was not noise-induced because noise-induced hearing loss "tends to occur" in the 3000 to 4000 Hertz range, rather than at higher a higher frequency range first, as was indicated by the November 2005 VA examination. The audiologist also stated that there was "no objective evidence to prove" that the Veteran had cochlear synapses or hidden hearing loss. She noted the Veteran's VA treating otolaryngologist's opinion but stated that he had not reviewed the record when he provided his opinion. This was incorrect as he specifically noted his review of the record when he provided the September 2017 opinion and provided a subsequent, April 2018, opinion. Therefore, it appears that the audiologist was not familiar with the record when providing this opinion and she based on her opinion on how noise-induced hearing loss typically presents, rather than how it would present in this specific Veteran. Therefore, this opinion is also inadequate. (CONTINUED ON THE NEXT PAGE) The Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss was caused by in-service exposure to hazardous noise. Affording the Veteran the benefit of the doubt, service connection is warranted and the appeal is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.