Citation Nr: 21008280 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 16-00 234 DATE: February 16, 2021 ORDER Whether new and material evidence has been received to reopen the claim of service connection for left ear hearing loss is granted. Whether new and material evidence has been received to reopen the claim of service connection for right ear hearing loss is granted. Whether new and material evidence has been received to reopen the claim of service connection for tinnitus is granted. Service connection for left ear hearing loss is granted. Service connection for tinnitus is granted. REMANDED The issue of service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. In a March 1997 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral hearing loss; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the March 1997 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss, and raises a reasonable probability of substantiating the claim. 3. In a March 1997 rating decision, the AOJ denied service connection for tinnitus; a timely NOD was not filed, and no new and material evidence was received within the appeal period. 4. Additional evidence received since the March 1997 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus, and raises a reasonable probability of substantiating the claim. 5. The competent and probative evidence is at least in equipoise as to whether current left ear hearing loss had its onset in or is otherwise related to the Veteran’s period of active service. 6. The competent and probative evidence is at least in equipoise as to whether current tinnitus had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The March 1997 decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the March 1997 decision to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The March 1997 decision denying service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 4. New and material evidence has been received since the March 1997 decision to reopen the claim of service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 6. The criteria for service connection for tinnitus have been met. 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 June 1989 to August 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board videoconference hearing. A transcript of the hearing has not yet been associated with the virtual file. Based on the Veteran’s testimony and evidence of record, the Board has determined the issues of service connection for left ear hearing loss and tinnitus may be fully granted. Accordingly, the Veteran will not be prejudiced by the lack of transcript in the claims file. New and Material Evidence Generally, a claim which has been denied in a final decision by an AOJ may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary must reopen the claim and review its former disposition. 38 U.S.C. § 5108. To be considered new, evidence cannot have been previously submitted to agency decision makers or be cumulative or redundant of evidence of record at the time of the last prior final denial. To be material, evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In deciding whether new and material evidence has been submitted, the Board considers evidence submitted since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 1. Whether new and material evidence has been received to reopen the claim of service connection for left ear hearing loss. 2. Whether new and material evidence has been received to reopen the claim of service connection for right ear hearing loss. 3. Whether new and material evidence has been received to reopen the claim of service connection for tinnitus. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issues of service connection for bilateral hearing loss and tinnitus. In March 1997, the AOJ denied service connection for bilateral hearing loss and tinnitus because there was no evidence of an in-service event, current disability, or nexus. The Veteran did not file a timely NOD and no new and material evidence was received within the period; therefore, the March 1997 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 3.156(b), 20.1103. The Board will therefore consider evidence received since the March 1997 decision. In 2019 and 2020, VA received VA treatment records that included a positive nexus opinion for tinnitus, audiology reports indicating the Veteran has mild to moderate left ear sensorineural hearing loss at 4000 to 6000 Hz, and the Veteran’s complaints that hearing loss has been continuous since discharge from service in 1992. See VA treatment records dated February 2002, February 2003, October 2013, November 2017, and July 2018. The Board finds that this medical evidence is new and directly pertains to the basis for the prior final denial, by addressing whether tinnitus and bilateral hearing loss are causally related to the Veteran’s period of active service. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. As the disabilities in question, tinnitus and hearing loss, are a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be established based on continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (classifying tinnitus as organic diseases of the nervous system under 38 C.F.R. § 3.309(a)). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 4. Service connection for left ear hearing loss. 5. Service connection for tinnitus. The Veteran contends that hearing loss and tinnitus began during service and have persisted since his discharge from active duty in 1992. Specifically, the Veteran states his in-service work as a gunner and mechanic routinely exposed him to hazardous noise. See February 2021, Board hearing; May 2015, NOD. After review of the record, the Board finds the criteria for service connection for left ear hearing loss and tinnitus have been met. In a claim of service connection for impaired hearing, demonstration of the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. Here, an April 1997 re-enlistment audiogram revealed left ear hearing loss of 40 dB at 4000 Hz which demonstrates right ear hearing loss for VA purposes. See April 1997, STR; 38 C.F.R. § 3.385. The Board references the April 1997 STR only to demonstrate current right ear hearing loss for VA purposes, and not to show that hearing loss was incurred during that period of service. Additionally, current left ear hearing loss is also supported by VA’s providing the Veteran with a left ear hearing aid. See July 2018, VA treatment record. A February 2002 VA treatment record includes a diagnosis of tinnitus. See February 2002, VA treatment record. The Board, accordingly, finds competent evidence of current disorders of left ear hearing loss and tinnitus. Service treatment records (STRs) indicate the Veteran was routinely exposed to hazardous noise. The Veteran’s 1988 entrance examination indicated normal ears and left ear hearing thresholds were 5 dB at 500 Hz, 0 dB at 4000 Hz, and 10 dB at 6000 Hz. At the April 1992 separation examination, left ear hearing had decreased to 25 dB at 500 Hz, 50 dB at 4000 Hz, and 45 dB at 6000 Hz. See STRs dated August 1988, May 1990, and April 1992. Post-service treatment records note the Veteran’s numerous complaints of hearing loss and constant high-pitched ringing in his ears and hearing loss. Specifically, 2013, 2017, and 2018 audiology notes indicate mild to moderate left ear sensorineural hearing loss from 4000 to 6000 Hz. See VA treatment records dated February 2002, October 2013, November 2017, and July 2018. A February 2003 audiology report noted the Veteran’s complaints of constant ringing in both ears which began during service in 1989 and the Veteran’s in-service noise exposure as a mechanic on the artillery unit. The VA audiologist opined it is at least as likely as not that tinnitus is the result of military noise exposure due to the onset of symptoms. The Board accords high probative weight to the VA audiologist’s positive nexus opinion as it was supported by an in-person examination and the Veteran’s lay statements regarding the onset and continuity of symptoms. See February 2003, VA treatment record. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether current left ear hearing loss and tinnitus had its onset in or is otherwise related to the Veteran’s period of active service. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. The Board finds the Veteran’s lay statements regarding the onset and continuous symptoms of tinnitus and left ear hearing loss since discharge from service in 1992 to be competent and credible and accords high probative weight to same. Resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for left ear hearing loss and tinnitus is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of service connection for right ear hearing loss. The Veteran contends that hearing loss has been continuous since discharge from active service in 1992 and is the result of hazardous noise exposure during active service. See February 2021, Board hearing; May 2015, NOD; November 2013, VA Form 21-4138. Service treatment records indicate the Veteran was routinely exposed to hazardous noise. The Veteran’s 1988 audiogram conducted upon entry into the service showed right ear hearing thresholds of 10 dB at 500 Hz. By May 1990, right ear hearing had decreased to 30 dB at 500 Hz. See STRs dated August 1988 and May 1990. The Board, accordingly, finds the threshold for obtaining a VA examination for right ear hearing loss has been met and the AOJ should obtain an opinion regarding the nature and etiology of any current right ear hearing loss. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes VA treatment records indicate the Veteran reported receiving an audiology examination in 1996 at Cambridge VA Medical Center (VAMC), but those records are not in the claims file. See February 2002, VA treatment record. Additionally, VA audiology progress notes dated 2003, 2013, and 2017 reference audiology examinations, but auditory threshold frequencies in decibels are not included in the claims file. On remand, any previously unobtained and ongoing medical records should be procured and associated with the claims file. The matter is REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment records of the Veteran from Pocomoke City, Baltimore, and Cambridge VAMCs since 1996, to include auditory test results from 1996, 2003, 2013, and 2017, then associate them with the claims file. 2. After completing directive #1, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature, extent, and etiology for his claimed right ear hearing loss. The clinician should review the virtual file and address the following: (a.) Identify all right ear disabilities that are currently present, to include right ear hearing loss. (b.) State whether it is at least as likely as not (50 percent or greater probability) that any disability of the right ear manifested during or is otherwise related to the Veteran’s period of active service, to include the Veteran’s statements that hearing loss began during service and continued after discharge. (c.) State whether it is at least as likely as not (50 percent or greater probability) that any current right ear disability is proximately due to or aggravated by a service-connected disability, to include left ear hearing loss. The Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. All indicated tests and studies, including a puretone audiometry test and a speech recognition test (Maryland CNC test), shall be conducted, and the results of such testing shall be included in the examination report. Additionally, all examination findings/testing results (if any), along with complete, clearly stated rationale for the conclusions reached, must be provided. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.