Citation Nr: A21020219 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 190702-172088 DATE: December 17, 2021 ORDER The petition to reopen the claim for entitlement to service connection for bilateral hearing loss is granted. The petition to reopen the claim for 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. New evidence that is relevant to the claim of entitlement to service connection for bilateral hearing loss has been received since the October 2016 denial of service connection for that disability or during a time when the evidentiary record was closed. 2. New evidence that is relevant to the claim of entitlement to service connection for tinnitus has been received since the October 2016 denial of service connection for that disability or during a time when the evidentiary record was closed. 3. The Veteran experienced acoustic trauma during service. 4. The Veteran is competent to report having experienced bilateral hearing loss since service. 5. The Veteran is competent to report having experienced ringing in his ears since service. CONCLUSIONS OF LAW 1. The criteria for readjudication of the claim for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501(a). 2. The criteria for readjudication of the claim for service connection for tinnitus have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501(a). 3. Bilateral hearing loss was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Tinnitus was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1960 to November 1963, including service in Korea. During the pendency of the appeal, the Veteran passed away in April 2021. The Veteran's wife was properly substituted as the appellant. This matter is on appeal to the Board of Veterans' Appeals (Board) from a June 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran timely appealed the portion of the rating decision pertaining to the issues above and requested a hearing before the Board and an opportunity to submit evidence at the hearing and within 90 days following the hearing. 38 C.F.R. § 20.202. Initially, the Board notes that the appellant attempted to change lanes to the evidence submission lane. However, as the Veteran had already received a hearing, this request to change lanes was denied. As evidence was added to the claims file during a period of time when new evidence was not allowed. The Board may not consider this evidence. 38 C.F.R. § 20.300. That stated, the newly submitted evidence will be reviewed and considered by the agency of original jurisdiction (AOJ) after it completes the development ordered by the Board immediately below. 1. The petition to reopen the claim for entitlement to service connection for bilateral hearing loss 2. The petition to reopen the claim for entitlement to service connection for tinnitus The RO denied the Veteran's claim of service connection for bilateral hearing loss and tinnitus in an October 2016 rating decision, finding that these conditions were not related to service. The Veteran later submitted the supplemental claim that is the basis for this appeal. In a June 2019 decision, the RO found that new and relevant evidence had not been received and the claims could not be readjudicated. VA will readjudicate a previously denied claim if new and relevant evidence is presented or secured. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(d). New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim and includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1). In determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records reasonably identified by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed. 38 C.F.R. § 3.2501. When a supplemental claim has been submitted, the evidentiary record includes evidence received by VA before the issuance of notice of a decision on the supplemental claim. 38 C.F.R. § 3.2501(b). The evidence received since the October 2016 rating decision includes evidence that is both new and relevant to the claim. See 38 C.F.R. § 3.2501(a)(1). For example, lay statements show that the Veteran has suffered from hearing loss and tinnitus since service. Additionally, treatment records show additional treatment for these conditions. Accordingly, the claims should be readjudicated taking into consideration all of the evidence of record. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. §1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends he is entitled to service connection for bilateral hearing loss disability and tinnitus. For the reasons stated below, the Board finds service connection for bilateral hearing loss disability is warranted. 3. Entitlement to service connection for bilateral hearing loss is granted. As required under the first prong of Shedden, medical evidence indicates a current bilateral hearing loss disability. Medical diagnosis of hearing loss disability is measured with numerical criteria as defined by pertinent VA regulation. With respect to claims for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. §3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was last afforded a VA examination in September 2016. The September 2016 VA audiology examination tested the Veteran's hearing at 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz. In the right ear the puretone thresholds in decibels measured, 90, 90, 90, 90, and 100, respectively; and in the left ear the puretone thresholds in decibels measured 25, 25, 45, 60, and 65, respectively. The Maryland CNC test was performed and returned speech recognition scores of 88 percent for the right ear and 96 percent for the left ear. Given that the auditory threshold for the frequencies of 2000, 3000, and 4000 Hertz in the right ear measure 40 decibels or greater, and the auditory thresholds for at least three of these frequencies in the left ear measure 26 decibels or greater, the Board finds that the Veteran has a current diagnosis of bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran contends he was exposed to excessive noise during his service resulting in bilateral hearing loss. The Veteran asserts that he was infantry and that during his service he repaired machine guns. He asserts that after the repairs he was required to fire them for testing purposes for malfunction and anything else that may need repairing. He asserts that he was also required to qualify with these weapons during his service. See February 2019 Statement in Support of Claim. At the March 2021 Hearing, the Veteran further testified that he was exposed to acoustic trauma in service as a "recon, machine gunner," which he clarified meant that he was a driver and often had a machine gun right behind him. In addition to the Veteran's contentions, the Veteran's DD Form 214 indicate that he served as specialist in light weapon, glass gunner (light machine gun). Therefore, taking into consideration the Veteran's contentions along with his DD Form 214, the Board credits the Veteran as a reliable historian of his experiences and noise exposure in service. See Jandreau, 492 F.3d at 1377. As there is nothing in the record that contradicts the Veteran's testimony of being exposed to hazardous noise in service, the Board concedes that the Veteran was exposed to excessive noise in service. Therefore, the second prong of Shedden, an in-service incurrence or aggravation of a disease or injury, is met. Addressing the third prong of Shedden, a nexus between the current disability and conceded in-service noise exposure, the Board considers the medical opinion and lay testimonies provided in the record. The Board recognizes that the September 2016 VA examiner opined the Veteran's hearing loss was "not at least as likely as not caused by or as a result of an event in military service." The examiner's opinion was based on the following rationale: "It is unlikely any significant threshold shifts occurred in service considering Veteran's hearing was well within normal limits at time of military exit." The examiner supported his rationale by explaining that available service treatment records are silent for any complaint, diagnosis, or treatment of claimed condition. While, as the examiner noted, service treatment records do not show complaints of or treatment for hearing loss, the Veteran asserts that he was exposed to acoustic trauma in service, and that he has continued to hear this noise and ringing in his ears since service. See September 2016 VA examination; see also March 2021 Hearing Transcript. The Board is mindful that the absence of in-service evidence of a disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the Board notes the Veteran's consistent assertions of hearing loss beginning in service. At the September 2016 VA examination the Veteran explained that his hearing loss begin in service. At the March 2021 Hearing the Veteran described his impaired hearing in service to be akin to sounding like he was hearing through glass or a tunnel. Therefore, when considering lay statements of record, the Board concedes the Veteran's military noise exposure, and the Board finds the Veteran to be an accurate historian when he asserts that he has experienced bilateral hearing loss since service. The Board finds that the Veteran has credibly reported continuity of symptoms of hearing loss that began in service and has continued since service. Accordingly, the Board affords the Veteran's assertions as to continued symptomatology since service appropriate probative weight. Service connection for a recognized disease, such as hearing loss, can be established through continuity of symptomatology. 38 C.F.R. §§3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Thus, following a review of the medical and lay evidence of record, the Board finds that the negative medical opinion of record is outweighed by the competent and credible statements of the Veteran as to ongoing hearing loss since service. Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board finds the evidence of noise exposure in service, current bilateral hearing loss, and continuity of symptoms since his honorable period of service, support a grant of entitlement to service connection for bilateral hearing loss. See Walker, 708 F.3d 1331; see also 38 U.S.C. §§1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303. 4. Entitlement to service connection for bilateral hearing loss is granted. The Veteran contends he is entitled to service connection for tinnitus. For the reasons stated below, the Board finds that service connection for tinnitus is warranted. The Veteran contends that he was exposed to excessive noise during his service, resulting in tinnitus. The evidence of record documents that the Veteran has tinnitus inasmuch as the Veteran credibly stated that he had ringing in his ears during the period on appeal. See September 2016 VA examination; see March 2021 Hearing Transcript; see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran was competent to as to the ringing in his ears because ringing in the ears is capable of lay observation). Because tinnitus is observable by a layperson, the Board finds the Veteran's observation both competent and credible evidence of a current disability. Therefore, the first prong of Shedden, a current disability, is met. As to an in-service incurrence, the Board notes the acoustic trauma conceded and noted above. Therefore, the second prong of Shedden is met. As to the third prong of Shedden, a nexus, the Board finds that this prong is met. The Board notes the September 2016 VA examination opinion, which found that the Veteran's tinnitus was less likely than not (less than 50% probability) caused by or a result of military noise exposure. The examiner once again relied on the lack of complaints of or treatment for tinnitus or acoustic trauma in service. The examiner further noted that the Veteran's reports of onset were was 30+ years after military discharge, and the Veteran did not provide a clear nexus between the onset of tinnitus and his military service. The Board is again mindful that the absence of in-service evidence of a disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, the Board notes that at the September 2016 VA examination the Veteran reported that he was unsure of the onset of his tinnitus symptoms. However, at the March 2021 Board Hearing, the Veteran clarified that he first heard buzzing in his ears during service and that he never heard such before. Therefore, the September 2016 VA examiner's opinion is supported by incorrect facts as to the Veteran's onset of tinnitus, which the Veteran has since clarified. Thus, the Board affords the VA examiner's opinion little probative value. Considering the lay statements of record, the Board concedes the Veteran's military noise exposure, and the Board finds the Veteran to be an accurate historian when he asserts that he has experienced ringing in his ears since service. See Charles, 16 Vet. App. at 374. The Board finds that the Veteran credibly reported continuity of symptoms of tinnitus in service and since service. Accordingly, the Board affords the Veteran's assertions as to continued symptomatology since service appropriate probative weight. Again, the Board is reminded that service connection for a recognized chronic disease, such as tinnitus, can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Thus, following a review of the medical and lay evidence of record, the Board finds that the negative medical opinion of record is outweighed by the competent and credible statements of the Veteran as to ongoing tinnitus since service; and the Board finds that the probative evidence of record indicates that the Veteran's tinnitus began in service. Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence of noise exposure in service, current tinnitus, and continuity of symptoms since his honorable period of service, support a grant of entitlement to service connection for tinnitus. See Walker, 708 F.3d 1331; see also 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.