Citation Nr: 21008749 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 20-30 305A DATE: February 17, 2021 ORDER New and material evidence having been introduced, the appeal to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. New and material evidence having been introduced, the appeal to reopen a claim of 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. A February 2, 2016 rating decision denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran was apprised of the decision and did not appeal within a year of its issuance. 2. Evidence received into the record since the February 2016 rating decision, by itself or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the Veteran’s claims for service connection for bilateral hearing loss and tinnitus. 3. Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise as to whether his current bilateral hearing loss is etiologically related to in-service hazardous noise exposure. 4. Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise as to whether his current tinnitus is etiologically related to in-service hazardous noise exposure. CONCLUSIONS OF LAW 1. The February 2016 rating decision denying entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 1705 (c); 38 C.F.R. § 20.1103. 2. The evidence received since the February 2016 rating decision is new and material, and the claims of entitlement to service connection for bilateral hearing loss and tinnitus are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.385. 4. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1952 to April 1954. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Whether new and material evidence has been introduced to reopen claims of entitlement to service connection for bilateral hearing loss and tinnitus Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. The Veteran’s claims for service connection for hearing loss and tinnitus were denied in a rating decision in February 2016. The Veteran was informed of the rating decision, but did not appeal or submit new and material evidence within one year; hence, the decision became final. Since that time, the Veteran has advanced additional evidence, including medical treatment records and lay statements in support of her claim that shed additional light on her service and the nature of her condition. The Board finds this evidence “new,” because it postdates the aforementioned rating decisions. The Board also finds the new evidence “material,” because it bears directly on points at issue on the question of entitlement to service connection in the instant case, and raises at least a reasonable probability of substantiating the underlying claim. Consequently, the claims of service connection for bilateral hearing loss and tinnitus are reopened 2. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 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.  Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran contends that his bilateral hearing loss has been caused by in-service acoustic trauma. Specifically, the Veteran has averred that his service during the Korean War exposed him to gunfire from field weapons and heavy equipment, that he was not afforded ear protection, and that he was not thus exposed in post-service civilian life. Thus, the Veteran believes his current hearing loss to be attributable to in-service hazardous noise exposure. A review of service records and post-service medical records in this case supports the Veteran’s statements in this respect, and thus the Board regards them as credible. Further, the medical record shows current bilateral hearing loss, confirmed by January 2016 VA audiological examination report, and March 2020 VA treatment records. Notes associated with the former confirm the Veteran “was exposed to excessive noise during his military service as an engineer,” adding his exposure “to noise from heavy equipment [was] without the use of ear protection,” and that “[i]t is known that exposure to excessive noise levels can produce progressive hearing loss.” This statement, coupled with the Veteran’s credible account of the progression of his hearing loss since separation, convinces that Board that current hearing loss in this case is at least as likely as not related to in-service acoustic trauma. Accordingly, the evidence in this matter being at least in equipoise, the appeal for service connection for bilateral hearing loss is granted. 3. Entitlement to service connection for tinnitus The Veteran has credibly averred that he has tinnitus as a result of in-service noise exposure. Because the Veteran in this case has offered competent, credible statements that he experiences tinnitus, the Board finds he has met the current disability threshold. See Charles v. Principi, 16 Vet. App. 370, 374 (2002)(“ringing in the ears is capable of lay observation”). The dispositive issue is therefore whether tinnitus is related to service. As discussed above, the Veteran’s credible account of his service has led the Board to concede exposure to hazardous noise therein. The instant decision grants service connection for bilateral hearing loss based on in-service acoustic trauma. Further, the VA audiologist with whom the Veteran met in January 2016 indicated that “it is…known that hearing loss can cause tinnitus.” These facts convince the Board that sufficient evidence exists to establish a basis for service connection for tinnitus in this case. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence favors the claim, and service connection for tinnitus is granted GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.