Citation Nr: 21013947 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-19 835 DATE: March 11, 2021 ORDER New and material evidence has been received to reopen a claim of service connection for a bilateral hearing loss disability. New and material evidence has been received to reopen a claim of service connection for tinnitus. Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. An August 2010 rating decision denied service connection for hearing loss and tinnitus; the Veteran did not file a timely notice of disagreement regarding that decision and no new and material evidence was submitted to VA within the applicable time period. 2. Evidence received since the August 2010 rating decision for service connection for bilateral hearing loss and tinnitus is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims. 3. The Veteran’s bilateral hearing loss disability was shown as chronic in service and is not attributable to intercurrent causes. 4. The evidence is at least in equipoise as to whether the Veteran’s tinnitus has continued since active duty service. CONCLUSIONS OF LAW 1. The August 2010 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the August 2010 denial of service connection for bilateral hearing loss and tinnitus; therefore, these service connection claims are considered reopened. 38 U.S.C. §§ 1110, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303, 3.307, 3.309. 3. The criteria for service connection for a bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2007 to May 2010. This case is before the Board of Veterans Appeals’ (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a virtual hearing before the undersigned Veterans Law Judge in November 2020. Claims to reopen New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss The August 2010 rating decision denied entitlement to service connection for bilateral hearing loss in part because there was no evidence on record of currently diagnosed bilateral hearing loss for VA purposes in accordance with 38 C.F.R. § 3.385. Evidence received since the 2010 rating decision includes an April 2019 VA audiogram which shows evidence of bilateral hearing loss for VA purposes. The Board finds that this evidence is new because it was not previously submitted to agency decisionmakers at the time of the August 2010 rating decision. The evidence is also material because it relates to an unestablished fact necessary to substantiate the claim—in this case, a current diagnosis of bilateral hearing loss for VA purposes. Therefore, the newly received evidence raises a reasonable possibility of substantiating the claim as it supports the current disability element of service connection. As such, the claim for service connection for a bilateral hearing loss disability is reopened. 2. Whether new and material evidence has been received to reopen the claim of service connection for tinnitus The August 2010 rating decision denied service connection for tinnitus in part because there was no evidence that it began during service or was caused by an injury or event in service. Evidence received since the 2010 rating decision includes a November 2020 Board hearing where the Veteran reported that he currently experiences ringing in his ears and has ever since his time on active duty. Further, at this hearing, the Veteran also described the acoustic trauma he sustained while serving in Iraq as a gunner. The Board finds that this evidence is new because it was not previously submitted to agency decisionmakers at the time of the August 2010 rating decision. The evidence is also material because it relates to unestablished facts necessary to substantiate the claim, including a statement from the Veteran that his tinnitus has continued ever since service, as well as evidence of in-service noise exposure which had not been previously conceded. Therefore, the newly received evidence raises a reasonable possibility of substantiating the claim as it supports all elements of the service connection claim—current disability, in-service incurrence and nexus. As such, the claim for service connection for tinnitus is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases including sensorineural hearing loss and tinnitus will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 3. Entitlement to service connection for a bilateral hearing loss disability For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability 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. The Veteran has a current diagnosis of bilateral hearing loss for VA purposes as evidenced by an April 2019 VA audiological examination. Although the examiner noted that the examination was not adequate for rating purposes because the speech recognition thresholds were 20 to 45 decibels lower than the pure tone averages; the Board is not rating the Veteran’s disability, and therefore, this statement does not change the Board’s finding that the Veteran is currently diagnosed with a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. Further, bilateral hearing loss is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records (STRs) contain a June 2008 audiogram which documents left ear hearing loss for VA purposes and a December 2009 audiogram which reflects bilateral hearing loss for VA purposes. A January 2010 audiology clinic visit shows a diagnosis of sensorineural hearing loss. Additionally, the Veteran’s April 2010 separation medical examination noted that the Veteran was diagnosed with hearing loss. In this case, because sensorineural hearing loss is a chronic condition, any subsequent manifestations are service connected unless attributable to intercurrent causes. No intercurrent causes have been shown in this case and therefore, the Veteran’s currently diagnosed bilateral hearing loss is attributable to service and service connection is granted. 4. Entitlement to service connection for tinnitus The Veteran contends his tinnitus began on active duty as a result of acoustic trauma and has continued since that time. See November 2020 Board hearing. In terms of a current disability, the Board notes that for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). During his November 2020 Board hearing, the Veteran reported that he currently experiences ringing in his ears. As just noted, the Veteran is competent to report ringing in his ears, as this symptom is observable by a lay person. The Board has no reason to doubt his credibility; therefore, the current disability element of the claim is established. As for the in-service incurrence element, significantly, during an in-service audiological evaluation in December 2009, the Veteran complained of constant tinnitus in his left ear. Further, the Veteran’s DD Form 214 shows his military occupational specialty was a military policeman and noted that he served in Iraq with Operation Iraqi Freedom from June 2008 through September 2009. The Veteran reported that while serving in Iraq, he was the gunner on a Humvee. He noted that he exchanged fire a couple of times, took part in training exercises that involved shooting weapons and was required to qualify on seven different weapons including grenade launchers. See November 2020 Board Hearing transcript. As such, the Board concedes in-service noise exposure. Finally, the Veteran reported that his tinnitus has continued ever since his time on active duty. See November 2020 Board Hearing Transcript. As noted above, the STRs show that the Veteran complained of ringing in his left ear during service and the Board finds that the Veteran is competent to report that the ringing in his ears has continued since that time up until the present. Again, the Board has no reason to question his credibility in this regard. The Board finds that the evidence is at least evenly balanced as to whether continuity of symptomatology has been demonstrated and therefore, the nexus requirement is met. As such, service connection for tinnitus is warranted. See 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Walker, 708 F.3d at 1331. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.