Citation Nr: 21012899 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-33 742 DATE: March 5, 2021 ORDER The appeal to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. The appeal to reopen the claim of entitlement to service connection for osteopenia of the back is granted. Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. Service connection for osteopenia of the back is granted. FINDINGS OF FACT 1. An unappealed July 2013 rating decision denied service connection for bilateral hearing loss. 2. Evidence received since the July 2013 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for bilateral hearing loss. 3. An unappealed July 2015 rating decision denied service connection for osteopenia of the back. 4. Evidence received since the July 2015 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for osteopenia of the back. 5. The evidence is at least in equipoise as to whether the Veteran’s tinnitus is etiologically related to his active duty service. 6. The evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is etiologically related to active duty service. 7. The evidence is at least in equipoise as to whether the Veteran’s osteopenia of the back is etiologically related to active duty service. CONCLUSIONS OF LAW 1. The July 2013 rating decision that denied service connection bilateral hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has been received sufficient to reopen the issue of service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The July 2015 rating decision that denied service connection osteopenia of the back is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 4. New and material evidence has been received sufficient to reopen the issue of service connection for osteopenia of the back. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for tinnitus are met. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for osteopenia of the back are met. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1952 to October 1954. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2021. 1. Whether new and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss has been received. The Veteran’s claim for service connection for bilateral hearing loss was denied initially by a July 2013 rating decision based on a finding that there was no in – service incurrence including an event, disease or injury resulting in hearing loss. Specifically, the RO found that the Veteran’s service treatment records (STRs) were silent regarding any active duty complaints of or treatment for hearing loss. The Veteran did not appeal the July 2013 rating decision nor was new and material evidence received within one year of that decision. Therefore, it is final. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that 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. Evidence received since the July 2013 rating decision includes VA treatment records, the Veteran’s lay statements both in writing and at hearing contending that his bilateral hearing loss resulted from acoustic trauma while serving in Korea without hearing protection and a November 2018 positive nexus opinion from a VA medical examiner. This evidence is new in that it has not been previously submitted. It is also material insofar as it presents new and heretofore unestablished facts relevant to substantiating the claim. As this additional evidence is both new and material, the claims for entitlement to service connection for bilateral hearing loss is reopened. 2. Whether new and material evidence sufficient to reopen the claim of entitlement to service connection for osteopenia of the back. The Veteran’s claim for service connection for osteopenia of the back was denied initially by a July 2015 rating decision based on a finding that there was in – service incurrence. Specifically, the RO found that the Veteran’s service treatment records (STRs) were silent regarding any active duty complaints of or treatment for osteopenia of the back. The Veteran did not appeal the July 2015 rating decision nor was new and material evidence received within one year of that decision. Therefore, it is final. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that 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. Evidence received since the July 2015 rating decision includes VA treatment records, the Veteran’s lay statements both in writing and at hearing contending that his osteopenia of the back began with a back injury while serving in Korea. This evidence is new in that it has not been previously submitted. It is also material insofar as it presents new and heretofore unestablished facts relevant to substantiating the claim. As this additional evidence is both new and material, the claim for entitlement to service connection for osteopenia of the back is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active 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 between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). A hearing loss disability for VA compensation purposes is defined by regulation as impaired hearing when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. Once the requirements of 38 C.F.R. § 3.385 have been met and a present hearing disability under applicable VA laws and regulations is found, a determination must be made as to whether the current hearing disorder is related to service. Even if a veteran does not have a hearing loss disability for VA compensation purposes recorded during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present hearing loss disability to service. The threshold for normal hearing is 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155 (1993). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 3. Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran contends that his bilateral hearing loss and tinnitus result from hazardous noise exposure in active service. He seeks service connection. The Veteran’s most significant duty assignment as listed on his DD Form 214 was with the heavy mortar company of the 5th Calvary Regiment. In his October 2019 Notice of Disagreement and in hearing testimony, the Veteran indicated that he has experienced hearing loss and tinnitus since active duty as a result of acoustic trauma. Specifically, he stated that during service he fired mortars from machine guns for two years without hearing protection. The Veteran is competent to assert the occurrence of an in-service injury, to include in service noise exposure. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Moreover, the Board finds that the Veteran’s assertions of being exposed regularly to hazardous noise are credible, consistent with the circumstances of his service and not contradicted by the competent evidence of record. See 38 U.S.C. § 1154 (a). Here the Board notes that both the Veteran and VA attempted to obtain relevant service treatment records (STRs) and military personnel records. However, all except the Veteran’s service separation examination were destroyed by a 1973 fire at the National Personnel Records Center. The Veteran’s separation examination is silent for any complaints of hearing loss or tinnitus or any corroboration that the Veteran was neither issued nor required to wear hearing protection. In such cases, there is a heightened duty to assist the Veteran. The Board finds that the Veteran’s statements regarding his hearing loss are consistent with the circumstances of his service with a heavy mortar company as delineated on his DD Form 214. Accordingly, the Board finds that the Veteran was likely exposed to hazardous noise in service. In November 2018, the Veteran underwent a VA audiological examination to assess the nature and etiology of his bilateral hearing loss and tinnitus. The VA examiner diagnosed bilateral sensorineural hearing loss and tinnitus consistent with VA disability parameters. The Board therefore must determine whether a nexus exists between the Veteran’s in – service exposure acoustic trauma and his current hearing loss and tinnitus disabilities. With regard to the question of nexus, the Board finds that this element is met. In that regard, throughout the appeal period, the Veteran has consistently asserted that his bilateral hearing loss and tinnitus started in service. See e.g., March 2021 Board Hearing Transcript and August 2019 Notice of Disagreement. Such statements suggest a continuity of relevant symptomatology since service. The Board notes that the Veteran is competent to report symptoms of hearing loss and tinnitus since service and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board acknowledges the negative nexus opinion provided by the November 2018 VA examiner who opined that both disabilities were less likely than not caused by or a result of an event in military service. The rationale for the negative nexus opinion pertaining to bilateral hearing loss was that the Veteran’s post service employment in a textile mill for more than 20 years would be a more likely long - term cause of the Veteran’s disability. The rationale for the examiner’s negative nexus opinion pertaining to bilateral tinnitus was that it was associated with the Veteran’s hearing loss which was not due to military service. The Board finds that the VA examiner’s the nexus opinion is of little probative value. Notably the VA examiner did not specifically address the Veteran’s lay reports of exposure to artillery as the cause of hearing loss and tinnitus. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (VA opinion found to be inadequate where examiner ignores lay statements). Moreover, the examiner failed to acknowledge any acoustic trauma and provide reasoning as to whether either his current bilateral hearing loss or tinnitus are causally related to in service hazardous noise exposure. See Hensley v. Brown, 5 Vet. App. 155 (1993). After a careful review of the competent and credible evidence of record including the Veteran’s lay statements of continuity of symptomatology, the acknowledged in-service noise exposure, the current finding of bilateral hearing loss for VA purposes, and resolving reasonable doubt in favor of the Veteran, the Board finds that his bilateral hearing loss and tinnitus disabilities are as likely as not causally related to noise exposure during active service and his claims on appeal are allowed. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 4. Entitlement to service connection for osteopenia of the back. The Veteran contends that his current back disability, diagnosed as osteopenia of the back, had its onset during service. The Veteran indicated in his virtual Board hearing testimony and in several written lay statements of record that during active duty, the rigors of service in a heavy mortar unit were such that he incurred back strain and back injury. Significantly, after separation, the Veteran continued to experience back pain and sought treatment at VA. As noted above, the Veteran is competent to assert the occurrence of an in-service injury. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Moreover, the Board finds that the Veteran’s assertions of back injury while in the performance of his duties as a soldier in a heavy mortar company are credible, consistent with the circumstances of his service and not contradicted by the competent evidence of record. See 38 U.S.C. § 1154 (a). Post - service VA treatment records indicated that the Veteran has a history of vertebral compression fracture and osteoporosis, with a current disability of osteopenia of the back. (Continued on the next page)   Regarding the nexus element, the Board finds that it is met. Here the Board notes that both the Veteran and VA attempted to obtain relevant service treatment records (STRs) and military personnel records. However, all STRs except the Veteran’s service separation examination were destroyed by a 1973 fire at the National Personnel Records Center. The Veteran’s separation examination is silent for any complaints of back injury. Nevertheless, in such cases VA has a heightened duty to assist the Veteran. The Board finds no reason to doubt the Veteran’s reports of back problems during active duty and that the Veteran’s statements in that regard are credible and probative on the issue of in – service incurrence. Accordingly, the Board finds that the Veteran had back strain and back injury during service. Furthermore, he has competently and credibly testified that his back pain not only began during service but continued thereafter on a chronic basis. Notably, there is no evidence of record which contradicts the Veteran’s statements. Accordingly, after careful review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran’s back disability, currently diagnosed as osteopenia, had its onset during service. In consideration thereof, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for osteopenia of the back is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.